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2003 DIGILAW 675 (RAJ)

Jamuna Lal v. Krishna Avtar Sharma

2003-05-02

S.K.KESHOTE

body2003
JUDGMENT 1. - Both these revision petitions arise from the same suit between the same parties pending in the Court of Additional Civil Judge (Sr. Div.) No.2, Jaipur being Civil Suit No. 89/1999. 2. In S.B. Civil Revision Petition No. 722/2000 the challenge has been 5 made to the order dated 8.5.2000 of the learned trial Court. The application filed by the defendant-respondent under section 115 of the CPC for closing of the evidence of the plaintiff was granted and the evidence of the plaintiff was closed. 3. In S.B. Civil Revision Petition No. 784/2000 the challenge has been made to the order of the learned trial Court whereby it rejected the 10 application filed by the plaintiff-petitioners to grant permission to them to examine only one plaintiff Madho Lal. 4. Heard the learned counsel for the parties. 5. The proceedings of the suit are placed for perusal of the Court by the learned counsel for the plaintiff-petitioners. On 4.10.1999 the matter was 15 fixed for evidence of the plaintiff. On that day the statement of three witnesses i.e. PW1, PW2 and PW3 were recorded and completed. On the request of the counsel for the plaintiff the matter was adjourned to 1.11.1999 for their evidence. It was stated to be the last opportunity granted in the interest of justice. On 1.11.1999 a request was made by the plaintiffs for recording the statement of Madho Lal, one of the plaintiffs, by filing an application and from the order sheet of this date I find that the application was granted and in the interest of justice the matter was adjourned to record the statement of only witness Madho Lal. The other evidence had been closed. The matter was deferred to 22.11.1999. In the suit, out of three plaintiffs, plaintiff Modi Lal was examined by the Court on 4.10.1999. On 22.11.1999 the plaintiff Madho Lal was present in the Court but the matter was adjourned as a request had been made for the same on behalf of the defendant-respondent on the ground that Senior Advocate Shri D.D. Parwal will make the cross-examination of this witness. The matter was fixed on 30 14.12.1999. On 14.12.1999 I find that both the plaintiff and defendant moved two applications. The matter was adjourned for the decision on these applications and fixed on 24 1.2000. On 24.1.2000 it appears to have been adjourned for 22.3.2000. The matter was fixed on 30 14.12.1999. On 14.12.1999 I find that both the plaintiff and defendant moved two applications. The matter was adjourned for the decision on these applications and fixed on 24 1.2000. On 24.1.2000 it appears to have been adjourned for 22.3.2000. On 22.3.2000 due to the strike of the employees of the Court the matter was adjourned to 2.5.2000 the argument were heard on these two applications and the same were decided on 8.5.2000. 6. From the perusal of these order sheets and the aforesaid application I find that the Court has not passed any order of closing the recording of the statement of Madho Lal, the plaintiff. On 14.12.1999 as the defendant moved an application for closing the evidence of Madho Lal and other plaintiff Jamuna Lal, it appears that the plaintiff-petitioners moved this application for grant of permission to record the statement of plaintiff Madho Lal. 7. The learned counsel for the defendant-respondent does not dispute that the defendant-respondent has not challenged the order dated 1.11.1999 of as the learned trial Court. Thus, that order attained finality. This objection now sought to be raised that after recording the statement of other witnesses the plaintiff has no right to examine himself, no more survives. This aspect of the matter has not been considered by the learned trial Court. Once the Court has permitted the plaintiff-petitioners to record the statement of Madho Lal in 1 these facts that order attained finality. In the same proceedings in the suit it is no more res integra the principle of res judicata apply. The plaintiff-petitioners wants to examine only Madho Lal, one of the plaintiffs. In view of this factual position on which there is no dispute, I fail to see any justification on the part of the plaintiff-petitioners to file the application purporting to have been filed under Order 18, Rule 3A of the CPC. The order of the learned trial Court closing the evidence of the plaintiffs i.e. the recording of the statement of Madho Lal is wholly perverse and the same cannot be allowed to stand. 8. The second order of the trial Court thereunder rejecting the application of the plaintiff-petitioners to permit them to examine Madho Lal, the plaintiff, as witness, also cannot be allowed to stand. 9. As a result of the aforesaid discussion both these revision petitions succeed and the same are allowed. 8. The second order of the trial Court thereunder rejecting the application of the plaintiff-petitioners to permit them to examine Madho Lal, the plaintiff, as witness, also cannot be allowed to stand. 9. As a result of the aforesaid discussion both these revision petitions succeed and the same are allowed. The orders dated 8.5.2000 of the learned trial Court are set aside. the plaintiff-petitioners shall be entitled to record the statement of the plaintiff Madho Lal only. The suit is to be decided within a period of 9 months from the date of the receipt of the copy of this order. No order as to costs.Revision Allowed. *******