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2006 DIGILAW 662 (RAJ)

Madhavlal S/o Shri Nanu Ramji v. Additional Civil Judge (Sr. Div. ), Bhilwara

2006-02-24

DINESH MAHESHWARI

body2006
JUDGMENT 1. - Having heard learned counsel for the parties and having perused the impugned order and so also the relevant order-sheets, this Court is satisfied that the learned trial Court has acted wholly illegally and with errors apparent on the face of record in closing down the evidence of the petitioner on 8.4.2005 and the impugned order cannot be sustained. 2. Brief facts relevant for determination of the questions involved in this writ petition-,are that the defendant-petitioner is facing a suit for eviction and recovery of arrears of rent filed by the respondent No.2. After closure of the evidence of the plaintiff on 6.10.2004, the case was adjourned to 3.11.2004 for defendant's evidence; on that date, the case was adjourned to 15.12.2004; and then again to 25.1.2005 at the request of the defendant. 3. It appears from the order-sheet dated 25.1.2005 that defendant produced his affidavit In evidence and the case was adjourned to 1.2.2005 for his cross-examination. On 1.2.2005, the defendant produced certain other affidavits and his cross-examination remained incomplete for paucity of time; and the case was posted for completion of cross-examination on 2.3.2005. On this date of 2.3.2005, time was sought for completing the cross-examination and the case was, therefore, posted for completion of the cross-examination on 8.4.2005. 4. On 8.4.2005, by the impugned order, the learned trial Court recorded that the cross-examination of DW-1 defendant and his witness DW-2 Vishnu son of Shyamlal was completed; that other witness was not present and defendant sought time for evidence. The learned trial Court observed that the matter was pending for defendant's evidence since 3.11.2004 and that the witness Vishnu son of Mathuralal was not present, therefore, the evidence was ordered to be closed and the affidavit of the absentee witness was ordered to be filed. 5. Assailing the order dated 8.4.2005, it has been contended on behalf of the petitioner that the. matter was not even fixed for cross-examination of the witnesses of the defendant and as such the witnesses could not have been produced on that day. 5. Assailing the order dated 8.4.2005, it has been contended on behalf of the petitioner that the. matter was not even fixed for cross-examination of the witnesses of the defendant and as such the witnesses could not have been produced on that day. Moreover, the time of the Court was over and it was 5.15 P.M. when the cross-examination of the defendant and his one witness Vishnu son of Shyamlal was completed and in that view of the matter, the Court ought to have placed the matter for cross-examination of the defendant's witness on the next date instead of closing down the evidence. Learned counsel for the contesting respondent has attempted his best to support the order impugned and pointed out that the matter has been pending for defendant's evidence for quite long and in the circumstances of the case, learned trial Court cannot be said to have acted illegally in closing the evidence. 6. having examined the order-sheets particularly from 3.11.2004 onwards, this Court finds that of course on earlier occasion the defendant took time for leading his evidence, nevertheless submitted his affidavit on 25.1.2005 and the case was posted for his cross-examination on 1.2.2005; and on 1.2.2005, affidavits of witnesses were submitted and defendant's cross-examination remained Incomplete and the matter was posted for his further cross-examination on 2.3.2005; and on that date, at the request of the parties, the matter was adjourned to 8.4.2005, again for cross-examination of the defendant. 7. When the learned trial Court has chosen to fix the matter for a particular purpose of completing the cross-examination that was already continuing and remained Incomplete, the defendant-petitioner cannot be faulted with for all the witnesses being not present in the Court. Yet, it appears that DW-2 Vishnu son of Shyamlal was produced and his cross-examination was also completed. In that view of the matter, it cannot be said that the petitioner was, seeking to misuse the rules of procedure or to elongate the trial. Interest of justice would definitely have been served if the matter was fixed on the next date for cross-examination of other witness whose affidavit had already been filed. 8. In that view of the matter, it cannot be said that the petitioner was, seeking to misuse the rules of procedure or to elongate the trial. Interest of justice would definitely have been served if the matter was fixed on the next date for cross-examination of other witness whose affidavit had already been filed. 8. This Court is of opinion that in the trial of a civil suit, such procedure is required to be adopted by the Court that sub-serves the cause of justice; and it is always preferred to provide fullest opportunity to all the parties to present their case before the Court and an issue is preferred to be decided on merits rather than driving out a party on mere technicalities. The impugned order dated 8.4.2005 operating squarely contrary to the requirements .of the rules of procedure which are meant to advance the cause of justice, cannot be sustained and deserves to be quashed. 9. As a result of the aforesaid, this writ petition succeeds and is allowed. The impugned order dated 8.4.2005 insofar it relates to closing of the evidence of the defendant in relation to the witness Vishnu son of Mathuralal, whose affidavit had already been filed, is set aside and the learned trial Court shall fix the matter for cross-examination of the said witness before taking any other proceedings in the matter. In the circumstances of the case, the parties are left to bear their own costs.Writ petition allowed. *******