S.D.ANAND, J. - (1.) THE facts, having relevant bearing on the disposal of the petition, in the first instance.
(2.) THE plaintiff-respondent Jaswinder Singh did not step into the witness box, as his own witness in the first instance and proceeded to examine certain other witnesses. On their failure to conclude evidence, the petitioners' evidence was closed by the learned Trial Court vide order dated 1.8.2007. The plaintiff-petitioners challenged that order by filing Civil Revision No. 4393 of 2007. That petition came to be allowed by Hon'ble Rajesh Bindal, J. in limine vide order dated 28.8.2007. Thereafter, plaintiff-respondent Jaswinder Singh tendered his affidavit into evidence in lieu of the Examination-in- Chief. It is at that stage that the defendant-petitioners filed an application to the effect that plaintiff-respondent Jaswinder Singh could not be allowed to appear as his own witness as he failed to examine himself at the very outset and he had not obtained the leave of the Court to examine himself, as his own witness, at a later point of time. It is the rejection of that application which is under challenge before this Court. Learned counsel for the petitioners argued that though this Court (in Civil revision No. 4393 of 2007) did allow the plaintiff-respondents one opportunity to conclude the evidence, it would not ipso facto amount to exemption from the rigorous provisions of Order 18 Rule 3A of the Code of Civil Procedure which require that the plaintiffs must step into the witness box before examining other witnesses. It was also argued that the plaintiff-respondents nowhere made a mention of the fact in the previous petition that they had not already stepped into the witness box before their evidence came to be closed.
(3.) A copy of the grounds of petition in Civil Revision No. 4393 of 2007 has been shown to the Court. A perusal thereof falsifies the factual averments made on behalf of the petitioners. It would be appropriate to quote hereunder the averments made in the course of paras 12, 13, 15 and 16 : "12. That on 1.8.2007, two PWs were present and examined and the other summoned witnesses namely Tarsem Singh Matharoo, Advocate, Sat Pal Deed Writer and plaintiff Jaswinder Singh himself could not be examined as the plaintiff Jaswinder Singh was to be examined who was in Canada and could be reach in India. 13. That due to unavoidable circumstances the statement of Jaswinder Singh plaintiff could not be recorded and two summoned witnesses presence could not be procured, but the ld. Court below instead of procuring the presence of the summoned witnesses, closed the evidence of the plaintiff by order dated 1.8.07. Copy of the order is annexed as Annexure P.1. 14......... 15. That the petitioner has to examine Jaswinder Singh one of the plaintiff as his own witness and he was to be examined on 1.8.07 but due to unavoidable circumstances, he could not come to India on the fixed date for giving his statement and on that date other two witnesses who were summoned through court was also not present. 16. That the plaintiff has to examine only three witnesses including the plaintiff himself and tender into evidence the documentary evidence already on the file or in the custody of the petitioner, but due to this order, Annexure P.1, the plaintiff will suffer loss and irreparable loss." ;