- (1.) Heard Mr. Mahendra Shah learned counsel for the petitioner.
(2.) By way of the present petition under Article 227 of the Constitution of India, the petitioner has challenged the legality and validity of orders dated 5.11.2011 and 4.1.2012 respectively passed by the trial court. 2.It appears that in the suit filed by the petitioner-plaintiff against the respondent No.2-defendant, the trial court had passed conditional order dated 18.7.2011, permitting the respondent-defendant to lead evidence and cross examine the witness examined by the plaintiff, on the defendant making payment of cost of Rs.1,000/-. It further appears that despite the said opportunity granted to the respondent-defendant, the defendant neither paid the cost nor proceeded further with the trial. Therefore, the court had, vide order dated 3.8.2011, drawn the ex-parte proceedings. Thereafter on 27.8.2011, the respondent-defendant moved an application for setting aside the said order dated 3.8.2011. The trial court allowed the said application vide order dated 27.9.2011 on the condition of payment of cost of Rs.100/-. However, the defendant did not deposit even the said amount of Rs.100/-. Since one witness Shri Bhagwan Sahay was already examined by the defendant earlier in January,2011 and was cross-examined partly by the plaintiff, the further cross examination of the said witness was fixed on 5.11.2011. On 5.11.2011, the plaintiff refused to cross examine the said witness on the ground that the defendant had not complied with the earlier orders passed by the court for the payment of cost. The trial court, therefore, vide order dated 5.11.2011 took note of non-compliance of the order at the instance of defendant and directed that the defendant shall not take part in the further proceedings of the suit. Since the plaintiff did not want to cross examine the witness, who was present in the court, the evidence of the defendant was also closed vide the said order. The plaintiff thereafter submitted an application under section 151 of CPC for discarding the evidence of the said witness Bhagwan Sahay. The said application came to be dismissed with cost of Rs.200/- by the trial court vide order dated 4.1.2012. Being aggrieved by the said orders dated 5.11.2011 and 4.1.2012, the petitioner has preferred the present petition.
(3.) It has been submitted by learned counsel for the petitioner that the defendant having not complied with the earlier orders passed by the court for the payment of cost, the entire evidence of the said witness was required to be discarded and that unless the cost was deposited, the defendant should not have been permitted to participate in the further proceedings.;