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2006 DIGILAW 1243 (MP)

Laxman Singh v. State of M. P.

2006-11-06

SUBHASH SAMVATSAR

body2006
ORDER 1. Heard on the question of admission. This petition is filed by the petitioners who are plaintiffs under Article 27 of the Constitution of India challenging the orders Annexures P-l and P-2 dated 28.10.2004 and 13.12.2004 respectively passed by Civil Judge Class II Ashoknagar in Civil Suit No. 266A/90 whereby the Court below has closed the evidence of the plaintiffs. 2. Brief facts of the case is that the trial was fixed on 28.10.2004 for recording the evidence of the plaintiffs. Plaintiffs have filed affidavit of one of the witnesses Laxman Singh but on that date the plaintiffs could not keep Laxman Singh present in Court for cross-examination. It is stated that Laxman Singh was ailing on that date and adjournment was sought on that ground. The Court granted adjournment to the plaintiffs petitioners for cross-examination of Laxman Singh on payment of costs of Rs. 100/and fixed the case for 13.12.2004. However, while adjourning the case for cross-examination of Laxman Singh, the Court has closed the right of examination of other witnesses on the ground that their affidavits are not filed by the plaintiffs. 3. After perusal of the provisions of Order 18 Rule 4 CPC, I find that by the amendment which was introduced on 1st July, 2002, the only change in Order 18 CPC is that recording of statement in chief by oral evidence is substituted by statement on affidavit. Before this amendment the procedure was that one witness was to be examined in chief and then his cross-examination and after completion of statement of one witness other witnesses were examined turn by turn. Now only substitution in the Code is that instead of recording oral statement in chief party is required to file its written affidavit. But this provision nowhere shows that all the affidavits should be filed together. 4. This Court could have understood if the Court could have refused to adjourn the case and closed the right of the plaintiffs to examine witnesses. The Court has not done that. Instead, the Court has adjourned the case to 13.12.2004. Thus, the Court below has committed a procedural mistake in directing the plaintiffs to submit affidavits of all witnesses together as a condition for their cross-examination. 5. In this view of the matter, this petition is allowed. The Court has not done that. Instead, the Court has adjourned the case to 13.12.2004. Thus, the Court below has committed a procedural mistake in directing the plaintiffs to submit affidavits of all witnesses together as a condition for their cross-examination. 5. In this view of the matter, this petition is allowed. Impugned orders are set aside and it is directed that the petitioners plaintiffs shall keep Laxman Singh present on the next date of hearing for cross-examination. 6. Counsel for the petitioners submits that he has already filed affidavits of all other witnesses. Hence, the trial Court shall cross-examine those witnesses, if kept present by the plaintiffs after cross-examination of Laxman Singh is over. Petition stands allowed with the aforesaid.