- (1.)THIS revision application has been filed by the plaintiff Lajjaram whose suit for recovery of a sum of Rs. 572/- was decreed by the learned Munsiff, Dholpur, but on appeal by the defendant was dismissed by the learned Senior Civil Judge, dholpur.
(2.)THE plaintiff-petitioner filed the suit for recovery of Rs. 400/- as principal and rs. 172/- as interest on the basis of a bond dated 13th October, 1961. The defendant denied the execution of the bond and also taking of any loan from the plaintiff on its basis. After framing issues the trial court recorded the evidence of the parties and decreed the plaintiff's suit. On appeal filed by the defendant, the learned Senior Civil Judge, Dholpur came to the conclusion that the statement of the plaintiff Lajjaram (P. W. 2) could not be taken into consideration as it had been recorded in contravention of the provisions of Order 18, Rule 2 (4) of the Civil procedure Code. Thus having excluded the statement of the plaintiff Lajjaram from consideration, on the rest of the evidence the learned Judge found that the plaintiff had failed to prove his case. It may be observed that only two witnesses were examined by the plaintiff in support of his case, P. W. 1 Jyoti Prasad and P. W. 2 Lajjaram (plaintiff ).
(3.)LEARNED counsel for the petitioner has urged that the learned Senior Civil Judge, dholpur acted illegally and with material irregularity in exercise of his jurisdiction in holding that the statement of the plaintiff was inadmissible. It may be observed that the issues were framed on 17-9-1965, After some adjournments the case was fixed for recording the plaintiff's evidence on 16-3-1966 on which date two witnesses viz. Jyoti Prasad (P. W. 1) and Lalia Ram (P. W. 2) were examined on behalf of the plaintiff. It appears from the order sheet of the trial court of 16th march, 1966 that the statement of Jyoti Prasad was marked as P. W. 1 and that of lajjaram was marked as P. W. 2. A contention was raised before the first appellate court on behalf of the defendant that under Order 13, rule 2 (4), Civil Procedure code, the plaintiff should have appeared as a witness before any other witness on his behalf was examined. It was argued that in the present case the plaintiff's witness Jyoti Prasad was examined first and thereafter the plaintiff appeared as a witness. It was further contended that this could be done only with the permission of the Court but no such permission was obtained. This submission found favour with the learned Senior Civil Judge, Dholpur who held that since the plaintiff had not made any application to be examined after his withess Jyoti Prasad was examined, his statement recorded in contravention of the provisions of Order 18, rule 2 (4), C. P. C. was inadmissible. Thus he refused to take into consideration the statement of the plaintiff Lajjaram and further found that the plaintiff's case was not proved merely by the statement of P. W. 1 Jyoti Prasad.
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