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Madhya Pradesh High Court · body

2005 DIGILAW 246 (MP)

Premchand Jain v. Ashok Kumar Agrawal

2005-02-15

RAJENDRA MENON

body2005
JUDGMENT Challenge in this petition under Article 227 of the Constitution is made to a order passed by the learned Court below staying the cross-examination of the plaintiff which was being held on 20.1.2005, thereafter directing the witness to be re-examined for the purpose of exhibiting certain documents. It is submitted by Shri Bharadwaj that once the cross-examination of a witness had commenced then in accordance with the provisions of section 138 of the Evidence Act. re-examination of witness is permissible only after the cross-examination is concluded and if reexamination is necessary being in accordance with the provisions of law. It is submitted by Shri Bharadwaj that merely because some documents have not been exhibited and some defect is pointed out in the process of examination-in-chief of witness concerned, learned Court could not interfere in the matter of cross-examination, direct for suspending cross-examination and ordering its continuation after exhibiting the documents. It is argued that such a procedure followed is contrary to the provisions of section 138 of the Evidence Act and inconsistent to the law laid down by the Supreme Court in the Case of Sukhwant Singh v. State of Punjab AIR 1995 SC 1601 . Refuting the aforesaid Shri P.C. Chandil, learned counsel submitted that after amendment to the Code of Civil Procedure, the statutory requirement is of submitting examination-in-chief in 'the form of a affidavit and in certain cases some difficulties are being observed. In the present case, as the original documents were in the file of the Court, they could not be exhibited at the time when affidavit was prepared and submitted in the Court, the said defect was being cured by the impugned order. Contending that the order impugned in no way substantially effects the right of the petitioner, it does not cause any prejudice or injustice to the petitioner. It is submitted that at this stage under Article 227 of the Constitution is not maintainable. I have heard learned counsel for the parties and perused the records. Contending that the order impugned in no way substantially effects the right of the petitioner, it does not cause any prejudice or injustice to the petitioner. It is submitted that at this stage under Article 227 of the Constitution is not maintainable. I have heard learned counsel for the parties and perused the records. Even though there may be some substance in the contentions advanced by Shri Bharadwaj with regard to the procedure followed by the learned Court but at the same time this Court cannot loose sight of the fact that interference in such matters exercising jurisdiction under Article 227 can be made only if the procedure being followed is so erroneous that it is in total disregard to settled principles of law and the same amounts to grave injustice being caused to one of the parties which cannot be rectified except by interference at this stage. Every error complained of need not be corrected in a proceeding under Article 227 of the Constitution. However, at this stage this Court is only required to consider as to whether the order is so erroneous or illegal in nature that interference is necessary at this stage failing which petitioner may suffer irreparable loss of injustice. The learned Court considering that exhibits have not been marked on the documents in the examination-in-chief submitted on affidavit as per Order 18 Rule 4 thought it appropriate to suspend the cross-examination for some time and thereafter proceed with the same after documents are exhibited, the aforesaid procedure followed does not call for any interference as it does not cause any prejudice to the petitioner which requires immediate intervention by this Court in a petition under Article 227 of the Constitution. Accordingly, I find no ground to interfere in the matter at this stage in a petition under Article 227 of the Constitution. However, considering the facts and circumstances of the case, imposition of cost was not warranted. Accordingly, this petition is disposed of with a direction to the Court to proceed with the cross-examination after exhibiting the documents and liberty granted to the petitioner to assail the procedure finally after the suit is disposed of. Petition for the present stands dispo.5.ed of with the aforesaid. C.C. as per rules.