- (1.) BY way of the instant writ petition, the petitioner has implored to quash and set-aside the order dated 19th August, 2008, whereby the Additional District Judge, Jhalawar set-aside the order dated 11th February, 2004 passed by the learned Civil Judge (Jr. Division) Chomhala, whereby he had reviewed its own order dated 11th November, 2003.
(2.) HAVING heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned orders it is revealed that one civil suit for permanent injunction came to be filed by the plaintiff-petitioner against the respondent no.2 ? defendant, wherein he had prayed to restrain the defendant to raise any construction on the land in question. It is further revealed that on 1st September, 2003, PW-4 Johari Lal, PW-5 Bagdu and PW-6 Gordhan were examined . Thereafter on 11th November, 2003, the petitioner-plaintiff prayed to grant one more opportunity to further produce the witnesses in evidence, but the learned trial court dismissed the prayer and closed the evidence. Thereafter when the fact of in-complete statement of witnesses namely PW-1 Mohan Lal and PW-3 Ratan Lal came to the notice of the court, the learned trial court reviewed its own order dated 11th November, 2003 and vide order dated 11th February, 2004 granted an opportunity for the cross-examination of the said witnesses as to cost of Rs. 300/-. The order dated 11th February, 2004 was impugned by the respondent-defendant in the court of Additional District Judge, Jhalawar where the appeal was allowed and the impugned order dated 11th February, 2004 passed by the learned trial court was set-aside. Aggrieved with this order of the Additional District Judge, Jhalawar, the petitioner-plaintiff has invoked the extraordinary jurisdiction of High Court under Article 227 of the Constitution. Having heard the learned counsel for the parties and carefully perused the impugned orders, it is noticed that unequivocally and undisputably it is true that the scope of the review is very limited and the power of review should be exercised by the learned trial court only when there appears to be discovery of new facts or some apparent illegality or any such error apparent on the face of record is found, which is totally contrary to material on record. Albeit, the impugned order passed by the learned Additional District Judge, Jhalawar does not seem to be unjust and improper, but it appears that the fact of incomplete statements of two witnesses namely PW-1 Mohan Lal and PW-3 Ratan Lal escaped from his sight and it looks that the appellate court was unaware of this fact that these two witnesses were never subjected to cross-examination and thus their statements remained incomplete, which were not admissible in evidence. If the statements of these witnesses are read in favour of the plaintiff, it shall cause prejudice to the defendant as he was not afforded the opportunity to cross-examine these witnesses and if these statements are made inadmissible in evidence, it is bound to cause prejudice to the plaintiff. It was the duty of the Court to look into this aspect and the court ought to have summoned these witnesses and afforded an opportunity to the defendant to cross-examine both of them. Rather the Court closed the evidence of the plaintiff. I, in these facts and circumstances of the case, find that the appellate court did not examine this in its right perspective and sans assigning any cogent reason arbitrarily set aside the impugned order of the trial court passed in review jurisdiction. Hence, with a view to meet the ends of justice, I deem just to allow the petitioner-plaintiff to produce both the witnesses PW-1 and PW-3 in the Court on 28th May, 2012 for the purpose of their cross-examination. In case these witnesses are not subjected to cross-examination, the respondents-defendants shall be deprived of their right to cross-examine the said witnesses and it may cause serious prejudice to them. Hence, the learned counsel for the respondents-defendant is expected to cross-examine both these witnesses on the said date. In view of above, the writ petition succeeds. The impugned order dated 19th August, 2008 stands set-aside and the order dated 11.2.2004 passed by the trial court in review is affirmed. The learned counsel for the plaintiff-petitioner is directed to produce both these witnesses before the trial court on 28th May, 2012 and on the same date, it is expected from the learned counsel for the respondent-defendant to cross-examine both these witnesses. In case the cross-examination of both these witnesses is not completed on that date, the learned trial court shall grant one more adjournment for the same purpose, failing which the right to cross-examination shall be closed and the court shall proceed ahead in accordance with law.;