Whether right to adduce evidence is lost as said party has failed to cross examine witness of other side?

In the aforesaid premises and particularly, the impugned order fails to reveal any reason for depriving an opportunity to the applicant to lead his evidence and furthermore the dates of proceeding given in the say filed by non applicants also failing to reveal that any such opportunity was received by the applicant after 19.11.2012, the order impugned in the application cannot be sustained. Needless to add, it cannot be sustained as both the parties have right to receive a fair and equal opportunity to place their case before the Court. However, considering the grievance made on behalf of non applicant, some directions also deserve to be given for serving the ends of justice. Resultantly, order dated 05.03.2013, rejecting the application made by the applicant to lead the evidence, is hereby quashed and set aside.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application No. 208 of 2013

Decided On: 20.08.2013

Appellants: Shankar Lilaram Chandwani
Vs.
Respondent: Veena

Hon'ble Judges/Coram:P.D. Kode, J.

 Citation: 2014ALLMR(Cri)1699

1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. After perusing the dates of the proceeding as depicted in the return filed by the non applicants, the grievance made by the applicant that the matter has been posted for judgment without giving an opportunity to lead evidence, cannot be said to be far from true. It appears accordingly as the dates given by the non applicants in return filed reveal that on 19.11.2012, the matter was fixed for the evidence of non applicant. It reveals that, thereafter, the matter was stayed due to the orders passed in proceedings earlier taken in this Court by the applicant. Without detailing the dates fixed thereafter, it can be safely said that the same do not reveal that at any point of time, thereafter, the matter was fixed for the applicant leading his evidence. On the said backdrop, therefore, the order impugned gives an impression that an application for such purpose made by the applicant was rejected on the point of himself having not availed an opportunity to cross-examine the non applicant granted by this Court vide order passed in earlier proceedings. It is difficult to perceive that only in the event of the applicant not availing said opportunity will have a result of applicant foregoing his right to contest matter by leading his evidence.

2. Mr. Pande, learned counsel for the non applicants, fairly submitted that non applicants do not have any objection for the applicant leading his evidence for which he has applied to trial Court. It is the grievance of learned counsel that the applicant, on some other pretext, is trying to prolong the proceeding. It is submitted that since the applicant has not availed the opportunity given to him vide order passed in the earlier proceeding to cross-examine the applicant, now the proceedings may be ordered to be continued from the stage thereafter and be ordered to be completed as expeditiously as possible.

3. In the aforesaid premises and particularly, the impugned order fails to reveal any reason for depriving an opportunity to the applicant to lead his evidence and furthermore the dates of proceeding given in the say filed by non applicants also failing to reveal that any such opportunity was received by the applicant after 19.11.2012, the order impugned in the application cannot be sustained. Needless to add, it cannot be sustained as both the parties have right to receive a fair and equal opportunity to place their case before the Court. However, considering the grievance made on behalf of non applicant, some directions also deserve to be given for serving the ends of justice. Resultantly, order dated 05.03.2013, rejecting the application made by the applicant to lead the evidence, is hereby quashed and set aside. Parties to remain present before the trial Court on 31.08.2013. The applicant to lead his evidence and so also that of his witness, if any, on said date or on such date, which would be fixed for such purpose by the trial Court. The trial court is directed to complete the proceeding in accordance with law from the stage of the evidence of the applicant/husband, in accordance with law, as early as possible and in any event by the end of November-2013. The parties shall cooperate with the lower court for expeditious disposal of the proceeding as ordered.

Rule made absolute in the above terms. No order as to costs.

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