- (1.) HEARD Shri Rajeev Misra, learned counsel for the petitioner and Shri K.S.Tiwari, learned counsel for the respondents.
(2.) O .S. No.235 of 2002 was filed by the plaintiff/respondents for cancellation of sale deed dated 26.12.2001 and for possession of the land which was the subject matter of the said sale deed. The suit was contested by the petitioner/defendant by filing a written statement on 21.12.2003. The trial court framed the issues. Thereafter, the respondent no.2/plaintiff no.2 submitted an affidavit by way of examination -in -chief, on 15.4.2008. Subsequently, respondent no.1/plaintiff no.1 also filed an affidavit dated 6.5.2008 by way of examination -in -chief. On 23.7.2008, the cross -examination of respondent no.2/plaintiff no.2 was recorded. On 11.8.2008, the petitioner/defendant filed an application objecting to the affidavit filed by the respondent no.1/plaintiff on 6.5.2008 on the ground that during the testimony of respondent no.2/plaintiff no.2 the right was not reserved to examine the plaintiff/respondent no.1 also in evidence.
(3.) THE petitioner/defendant relied upon a decision in the case of Sunni Central Board of Waqfs U.P. and others v. Gopal Singh Visharad and others, 2001 ACJ 579. The trial court rejected the objection of the petitioner/defendant vide order dated 31.8.2008 holding that the precedent cited by the petitioner/defendant was not applicable to the facts of the case. The plaintiffs/respondents had the right to begin and had the right to prove their case by leading their evidence. Being aggrieved, the petitioner/ defendant filed a revision which also came to be dismissed on 20.5.2011.The revisional court held that the precedent laid down by the High Court in the case of Sunni Central Board of Waqfs U.P. and others v. Gopal Singh Visharad and others was not applicable as the facts of that case was different. The controversy was covered by Order XVIII Rule 2(1) C.P.C. The said provision does not curtail the right of the petitioner to establish his case by examining only one out of several witnesses and there was no prohibition in the said provision to the effect that while examining the plaintiff no.1, if the right to examine other plaintiffs had not been reserved, then the said opportunity would stand forfeited. The plaintiff/ respondent no.2 was entitled to lead his evidence.;