- (1.) THE present petition has been filed challenging the order dated 24.2.10 passed by the learned Addl. Civil Judge (Jr. Div.)-cum-Judicial Magistrate, Karauli (hereinafter referred to as 'the trial court') in Civil Suit No. 133/01, whereby the trial court has allowed the application of the respondent No.3-original plaintiff filed under Order XVIII Rule 3A closing the evidence of the petitioner-Pradhuman Kumar, proprietor of the firm Jhumar Lal Swaroop Lal Tiwari.
(2.) THE short facts giving rise to the present petition are that the respondent No.3-original plaintiff has filed the suit seeking permanent injunction and possession of the suit property against the present petitioner and the respondent No.2 (original defendants). In the said suit both the defendants had filed separate written statements. THE case was thereafter fixed for evidence and after the closer of the evidence of the plaintiff, the case was fixed for the evidence of the defendant for the first time on 16.9.05. On the said date, the petitioner submitted his examination-in-chief on affidavit and the respondent-plaintiff sought time. THEreafter, it appears that the parties had amended the pleadings and issues were also re-framed and defendants were permitted to further cross-examine the witnesses of the plaintiffs already examined. On 7.11.08 the evidence of the plaintiff was closed and the matter was fixed for the evidence of the defendants. On 5.3.09 the defendant No.2 Chiranji Lal was cross-examined and his other witnesses were also cross-examined by the plaintiff and the matter was fixed for the cross-examination of the other witnesses on behalf of the defendant on 29.1.10. On 29.1.10, the respondent No.3-plaintiff submitted an application under Order Rule 3A of CODE OF CIVIL PROCEDURE, 1908 praying interalia to close the evidence of the present petitioner-defendant No.1 and the court vide impugned order dated 24.2.10 allowed the said application. Being aggrieved by the said order the present petition has been filed by the petitioner. It has been submitted by the learned counsel Mr. Rajnish Gupta for the petitioner firm that the impugned order passed by the trial court suffers from non-application of mind inasmuch as the provisions contained in Order XVIII Rule 3A of CODE OF CIVIL PROCEDURE, 1908 could not be invoked by the plaintiff for closer of evidence of the defendant. Referring to the various order-sheets produced on record, the learned counsel has submitted that after the closer of the evidence of the plaintiff, the suit was adjourned from time to time for the cross-examination of the witnesses for the defendants by the plaintiff on the basis of the affidavits filed by the witnesses for the defendants. He also submitted that the petitioner had already filed his affidavit as back as on 16.9.05 and thereafter various proceedings had taken place including the amendment of pleadings and further cross-examination of the witnesses for the plaintiff and cross-examination of the witnesses for the defendants. Accordingly to him both the defendants having filed separate written statements and the petitioner having already filed his affidavit earlier, there was no question of seeking any option from the court as contemplated under Order XVIII Rule 3A of CODE OF CIVIL PROCEDURE, 1908 and the court could not have closed the evidence of the petitioner. However, the learned counsel Mr. Yogesh Singhal for the respondent No.3-plaintiff supporting the order passed by the trial court submitted that despite various opportunities granted by the court to the petitioner, he had failed to remain present for his cross-examination and, therefore, the court had rightly closed the evidence under Order XVIII Rule 3A of CODE OF CIVIL PROCEDURE, 1908. In order to appreciate the rival contentions raised by the learned counsel for the parties, it is necessary to reproduce the provision contained in Order XVIII Rule 3A which reads as under :- 3A. Party to appear before other witnesses.--Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage. From the bare reading of the said provision it emerges that under Order XVIII Rule 3A, if a plaintiff or the defendant wishes to appear as a witness, he may so appear before any other witness on his behalf has been examined unless the court, for reasons to be recorded, permits him to appear as his own witness at a later stage. So far as the facts of the present case are concerned, the present petitioner had already filed his affidavit as back as on 16.9.05 and thereafter number of proceedings had taken place in between, there was no question of the petitioner asking for the option as contemplated under Order XVIII Rule 3A of CODE OF CIVIL PROCEDURE, 1908. That apart, there is no provision contained in Order XVIII Rule 3A to close the evidence of the party, as has been done by the trial court. The impugned order, therefore, suffers from non-application of mind and, therefore, deserves to be set aside.
(3.) IN that view of the matter the writ petition deserves to be allowed, with the direction that the petitioner shall remain present before the court for cross-examination by the plaintiff on the date that may be fixed by the court. In view of the above, the impugned order dated 24.2.10 is set aside and the petition is allowed accordingly with the aforesaid direction.;