- (1.) THIS revision has been filed against an order of the Assistant Collector, Bundi, dated 4. 12. 56, whereby he refused to examine the applicant on a subsequent date, as he did not agree to be examined on the date on which the court wanted to do so.
(2.) THE contention of the learned counsel for the applicant is that under sec. 135 of the Indian Evidence Act it is at the discretion of his client to submit himself or his witnesses as and when it suited him. It has been urged that there is no rule of law or definite rule of practice as to the order in which a party or its witnesses are to be produced and examined, and that it is at the discretion of the party or his counsel to lead his evidence in the order he considers proper, and that in such matters the court is not entitled to interfere unless there are strong reasons to the contrary. As against this, the learned counsel for the opposite party argued that when the defendant applicant was present, the court was within its jurisdiction to insist on examining him under order 18, rule, 16 C. P. C. It was also urged that an interlocutory order of this nature which could be agitated in appeal on the final disposal of the case could not be challenged in revision. O. 18, R. 16 reads as follows - "where a witness is about to leave the jurisdiction of the court or other sufficient cause is shown to the satisfaction of the court why his evidence should be taken immediately, the court may, upon the application of any party or of the witness at any time after the institution of the suit take evidence of such witnesses in the manner herein before provided. " In order to make this rule applicable, it is clear that there must be an application of a party to get a particular witness examined if he was to leave the jurisdiction of the court or there existed some other sufficient cause to the satisfaction of the court. Neither such an application exists on the record nor is there an order of the court that there existed a sufficient cause for examining a particular witness at a particular time. THE contention of the learned counsel for the opposite party is, therefore, ruled out. Section 135 of the Indian Evidence Act which lays down the law on the subject entitles a party to present its witnesses for examination according to its discretion. The court is very slow in such matters to interfere with this discretion of a party. In the circumstances, the applicant's prayer for being examined at a later stage after all the other remaining witnesses had been examined should not have been rejected. Evidently, the court overlooked this established rule of law and procedure and the order given by it can be interfered with in revision by this Board, as not only it is likely to effect the decision of the case on merits but it may also prolong the litigation between the parties if an appeal was to be filed after the final disposal of the case by the trial court. The preponderating view to some of the High Courts is that such interlocutory orders are open to revision. We, therefore, allow this application, set aside the order of the Assistant Collector and direct that he should give a reasonable discretion to the sequence in which he desires to do so. .;