W.P. No.6067/2010
29.6.2010
Shri A.S. Jha, Senior Advocate with Shri B.M. Prasad,
counsel for the petitioner.
Shri Sanjay Sarvate, counsel for the respondent.
This petition is directed against the order dated 9/4/2010
passed by First Additional District Judge, Waraseoni, District
Balaghat in Civil Suit No.20-A/2006 by which right of petitioner to
produce evidence was closed.
It is submitted by the petitioner that on 22.1.2010 the Trial
Court fixed the case for recording the evidence of plaintiff for
8/4/2010. Before 8/4/2010 the petitioner herein filed affidavits of
various witnesses, namely, plaintiff Jiyalal, Rajendra Kumar,
Ramesh, Rajkumar, Rajesh and Anand. On 8.4.2010 plaintiff’s
witnesses Jiyalal and Sunil Jain remained present. The aforesaid
witnesses remained present on that date but the Trial Court fixed
the case for 9/4/2010 for examination of these two witnesses.
These two witnesses appeared on 9/4/2010 and after cross-
examination they were discharged but the Trial Court closed the
right of petitioner for evidence. It is submitted that remaining five
witnesses, of which affidavits were already produced deserve to be
examined in the Trial Court. The Trial Court erred in closing the
right of petitioner to produce the evidence on 9/4/2010.
Learned counsel appearing for respondent though supported
the order passed by the Trial Court but in view of specific order
dated 8/4/2010, we do not find any substance in the objection
raised by the respondent. When on 8/4/2010 a specific order was
passed by the Trial Court to produce the witnesses present on that
date for cross-examination on 9/4/2010 with a further direction
that the application filed by the defendant will be considered on
that date, it was not necessary on part of the petitioner to produce
other witnesses in respect of which no specific order was passed
W.P. No.6067/2010
by the Trial Court. In these circumstances, if the Trial Court closed
the right of petitioner for cross examination on other witnesses, the
order is not sustainable in law.
In view of aforesaid, this petition is allowed. The petitioner
is permitted to examine witnesses, namely, Rajendra Kumar,
Ramesh, Rajkumar, Rajesh and Anand of which affidavits have
already been filed before the Trial Court. The Trial Court shall fix a
date for the examination of theses witnesses and thereafter shall
proceed in the case in accordance with law.
With the aforesaid direction, this petition is allowed with no
order as to costs.
(Krishn Kumar Lahoti) (J.K.Maheshwari)
JUDGE JUDGE
DV