1 / 5 2026:CGHC:16513 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 417 of 2026 Smt. Sumitra Dhimar W/o Late Shri Mohan Lal Dhimar Aged About 66 Years R/o Village- Bastipara Anda P.S. Anda, Tahsil- Durg District- Durg (C.G.) ... Petitioner versus 1 - Mahaveer Jain S/o Late Lakshmi Chand Jain Aged About 42 Years R/o Rishabh Nagar Durg Tehsil- Durg District- Durg (C.G.) 2 - Yuvraj Dhimar (dead) Through Legal Representatives:- 2 (A) Smt Motim Bai W/o Late Yuvraj Dhimar Aged About 50 Years R/o Aapapura Durg District- Durg (C.G.) 2 (B) Hemlata Taarak D/o Late Yuvraj Dhimar Aged About 33 Years R/o Mahamaya Para Raipur, District-Raipur (C.G.) 2 (C) Jyoti Minpal D/o Late Yuvraj Dhimar Aged About 31 Years R/o Aamapara Dhamtari District- Dhamtari (C.G.) 2 (D) Hemant Saavi S/o Late Yuvraj Dhimar Aged About 29 Years R/o Aapapura Durg District- Durg (C.G.) 2 (E) Rekha Naag D/o Late Yuvraj Dhimar Aged About 28 Years R/o Ghadi Chowk Kanker District- Kanker (C.G.) 2 (F) Neha Saavi D/o Late Yuvraj Dhimar Aged About 26 Years R/o Aapapura Durg District - Durg (C.G.) 2 (G) Ritu Sapha D/o Late Yuvraj Dhimar Aged About 25 Years R/o Mahamayi Para Raipur District- Raipur (C.G.) 3 - Deputy Registrar District- Durg (C.G.) 4 - State of Chhattisgarh Through- The Collector Durg District- Durg (C.G.) ... Respondents 2 / 5 For Petitioner : Mr. Jitendra Gupta, Advocate For State /Respondent : Mr. Vikyat Arora, PL (Hon’ble Shri Justice Ravindra Kumar Agrawal) Order on Board 09/04/2026 1. Heard. 2. The instant petition under Article 227 of the Constitution of India has been filed challenging the order dated 22/01/2026, passed by the learned 5th Additional Judge, to the Court of 1st Civil Judge Senior Division, Durg in Civil Suit A/168/2018, whereby the application filed by the petitioner under Order 18 Rule 4(2) of the CPC, seeking permission to cross-examine the defendant’s witness has been rejected on the ground that Defendant No.2 had expired and his legal representatives have been proceeded ex-parte. 3. Learned counsel for the petitioner would submit that the petitioner is the plaintiff before the trial Court and Defendant No.1 is contesting the suit but Defendant No.2, was proceeded ex-parte. After the death of Defendant No.2 his legal heirs have been substituted but they have also not participated in the proceeding and remained ex-parte. At the stage of recording of plaintiff evidence after the plaintiff’s and defendants’ witnesses, the plaintiff has filed an application under Order 18 Rule 4 (2) of the CPC for calling of the defendant witness namely Rajendra Dhimar 3 / 5 as he already filed his afidavit under Order 18 Rule 4 CPC in the form of examination-in-chief. He would next contend that since Rajendra Dhimar, who used to take Mohan Lal, plaintiff’s husband, to the doctor for his treatment, he would be the necessary witness in support of the claim of the plaintiff and the ailment of Mohan Lal. He would further submit that the trial Court has rejected the said application on the ground that Defendant No.2 has died and his legal heirs have remained ex-parte, therefore, their witnesses cannot be permitted to be cross-examined as they have not participated in the proceeding. He would further submit that depriving the plaintiff from cross-examining the witness of Defendant No.2, whose examination-in-chief has already been filed, would cause great prejudice to the claim of the plaintiff, therefore, he may be permitted to cross-examine the witness Rajendra Dhimar. 4. I have heard learned counsel for the petitioner and perused the documents with utmost circumspection. 5. From perusal of the order dated 22/01/2026 the legal heirs of Defendant No.2 were proceeded ex-parte. The said witness Rajendra Dhimar is the witness of Defendant No.2. Earlier he filed his affidavit under Order 18 Rule 4 CPC on 26/07/2025, thereafter Defendant No.2 expired and his legal representatives were brought on record but they have also remained ex-parte. 6. Upon consideration of the record, this Court finds that defendant No. 2 was proceeded ex parte during the course of trial and the said order has neither been recalled nor set aside. Consequently, defendant No. 2 4 / 5 ceased to have any right to participate in the proceedings. The legal representatives of defendant No. 2, though brought on record, also remained ex parte and did not take steps to contest the matter. In such a situation, the stage of participation on behalf of defendant No. 2 stood conclusively closed. 7. In view of the above, no right survives to permit cross-examination of a witness produced on behalf of defendant No. 2. Allowing such a course would indirectly revive the participation of a party who has already been proceeded ex parte, which is impermissible in law. It is also pertinent that the witnesses of the other defendants have already been examined, and the trial has progressed substantially. So far as the witness Rajendra Dhimar is concerned, he does not appear to be a necessary or material witness for the just decision of the case, inasmuch as his role is limited to having taken the husband of the plaintiff to a doctor. His examination does not go to the root of the controversy so as to warrant deviation from the settled procedural position. 8. Further, the burden to establish the case of defendant No. 2 squarely lay upon him. Having chosen to remain absent and having been proceeded ex parte, the consequences thereof must follow. It is always open to the trial Court to draw an adverse inference against defendant No. 2 for non- participation; however, the plaintiff cannot be permitted to seek cross- examination of a witness on behalf of an ex parte defendant, as such permission would be contrary to the procedural framework. In these circumstances, this Court does not find any perversity or illegality in the impugned order passed by the learned trial Court rejecting the 5 / 5 application. 9. Accordingly, the instant writ petition being devoid of merits liable to be and is hereby dismissed. SD/- Sd/- (Ravindra Kumar Agrawal) JUDGE ashu