How to get restore the right of cross-examination over defense witnesses (DWs), which has been closed by the trial court in a civil suit? What are the basic grounds for the the restoration of right of cross-examination? The draft is given here.

Civil Revision

Purpose: To impugn the order of the trial court whereby the trial court closed the right of cross-examination of plaintiffs over the DWs.

Forum: Appellate court.

CIVIL REVISION UNDER SECTION 115 OF CIVIL PROCEDURE CODE AGAINST THE IMPUGNED ORDER DATED 09.06.2022 , WHEREBY THE LEARNED CIVIL JUDGE, CLOSED THE RIGHT OF CROSS-EXAMINATION OF PLAINTIFFS OVER DEFENSE WITNESSES (DWs).

Respectfully Sheweth:-

That the plaintiffs filed a suit for partition through separate possession etc against the respondents, in which the respondents were summoned by the learned trial court, and evidence of petitioner was completed on 11.01.2022 and thereafter, the case was fixed for evidence of DWs on 27.01.2022.

That on 27.01.2022, the learned presiding officer was on leave and the case was further fixed for 03.02.2022. On 03.02.2022, the defendant’s counsel requested for an adjournment and the case was adjourned for 14.02.2022.

That on 14.02.2022, the evidence of defendants/respondents was not present, therefore, the case was again adjourned with a cost of Rs.100/- on the request of the defendants/respondents and again was fixed for 19.02.2022 and on the same day, the counsel of defendants/respondent was not available and the clerk of defendant’s counsel seeks  an adjournment, as the defendant’s counsel was out of the city, therefore, the case was adjourned for 09.06.2022 with cost of Rs.300/-. On 09.06.2022, the defendants recorded their evidence in chief, and the case was further fixed for the next date of hearing, the counsel of the defendants/respondents was busy and requested for adjournment, hence the case was again fixed for 06.04.2022.

That on the said date, the DWs were not present, therefore defendants/respondents again seek for adjournment and subsequently, the matter was fixed for last final opportunity for 17.05.2022 and the on 17.05.2022, astonishingly, the learned trial court granted last and final opportunity to the petitioners /plaintiff for  28.05.2022, despite of the fact that the plaintiffs/petitioners never ever asked or availed any adjournments, rather all the adjournments were taken by the defendants/respondents side, which is clearly depicted from the order sheet of the learned trial court.

On 28.05.2022, the petitioners were not present due to some unavoidable reasons, therefore the learned trial court imposed a cost of Rs.1000/-, and the case was finally fixed for 09.06.2022.

That on 09.06.2022, the petitioner’s counsel put his presence before the learned trial court, and thereafter, at 2:00 pm, the counsel of the petitioners again appeared before the trial court and marked his attendance in the order sheet and also deposited the cost of Rs.1000/-, which were duly received by the defendant’s side at the same time, which is also clearly shown in the order sheet. Whereas, when the counsel of the petitioners appeared before the court at 2:00 the DW was not present in the court and subsequently, the learned trial court was pleased to close the right to conduct cross-examination over DW vide order dated 09.06.2022, hence this revision petition for restoration of the right of cross-examination over DWs, inter alia on following:

G R O U N D S

That the impugned order is illegal, unlawful, and improper hence is not sustainable in the eye of law.

That the learned trial court miserably failed to examine the order sheet, in which it clearly depicts that the counsel of the petitioners put his appearance on each and every date of hearing, rather the defendants/respondents took many adjournments and the petitioners have not been given sufficient opportunities to conduct cross-examination over the DWs, hence the impugned order is based on misreading and non-reading of facts available on the file.   

That learned trial court did not consider the legal and lawful points involved in the instant case and passed the impugned order.

That right to conduct cross-examination of DW is the fundamental right of the petitioners and justice can be drawn after scanning/cross-examination, of the DWs but in the instant case the learned trial court did consider this aspect of the matter and passed impugned order in a routine manner.

That on the face of it the impugned order passed by the learned trial court is illegal, unlawful, and not sustainable in the eye of law.

That the learned trial court excised the jurisdiction which is not vested to it, hence the impugned order is liable to be set aside.

[other common grounds may be added]

PRAYER

In view of the above circumstances, it is, most respectfully prayed that the instant Civil Revision may kindly be accepted and the impugned order dated 09.06.2022  passed by the learned trial court, may kindly be set aside and the petitioners be given the right to conduct cross-examination of DWs, in the interest of justice.

Petitioners                            Through                 Counsel  

Certificate:-

It is certified that this is the first revision petition on the subject matter ever filed before this worthy court.

…Counsel