- (1.) THIS writ petition is directed against the order dtd.27.8.2010 passed by the learned Additional Dist. Judge (Fast Track) No.2, Udaipur in Civil Original Suit No.90/2007 ­ Daulat Singh V/s Shanti Lal, whereby the defendant's application to recall the witness D.W.1 Arun Kumar filed under Order 18 Rule 17 C.P.C. has been rejected by the learned trial Court.
(2.) THE learned counsel for the petitioner, Mr. Deelip Kawadia, submitted that since the original documents were filed at the time of filing temporary injunction application and the same were admittedly lying in the misc. application case for temporary injunction, the learned trial Court has errred in rejecting the application of the petitioner ­ defendant and ignoring those documents, even though the documents can be presumed to be within the knowledge of the defendant and even though the learned trial Court has so observed in the impugned order, it has failed to exercise its jurisdiction to allow the defendant to re-examine the defendant Arun kumar himself with respect to those documents merely on the ground that the defendant ought to have produced those documents in the original plaint itself. None appears on behalf of the respondents to oppose these submissions, even though the name of Mr. B.S. Charan is shown in the cause list.
(3.) HAVING heard the learned counsel for the petitioner, Mr. Deelip Kawadia, this Court is of the opinion that in these circumstances, there would be serious miscarriage of justice, if the trial Court cannot take note of documents already filed even though in the misc. application of temporary injunction attached with main suit itself and the defendant ought to have been allowed to re-examine D.W.1 Arun Kumar himself about the original documents which were already produced before the Court and the same could be exhibited in the main suit also retaining the copies thereof in the temporary injunction application case file.;