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2013 DIGILAW 128 (MAD)

Periyasamy v. K. P. Thangaraj

2013-01-07

G.RAJASURIA

body2013
JUDGMENT 1. Heard both the sides. From the facts and figures as well as from the submissions made on both sides, it reveals that the trial in the original suit is pending. The plaintiff closed his side after adducing evidence. Now the chief examination affidavit has been filed. However, no list of witnesses filed on the defendant's side and in such circumstances, I.A., was filed under Order 18 Rule 17 praying the Court to mandate that the witnesses on the defendant's side are all to be produced on one and the same day for enabling the learned counsel for the plaintiff for cross-examining them. But the Lower Court simply dismissed it. Being aggrieved by and dissatisfied with the same, the present Civil Revision Petition has been focussed. 2. The point for consideration is as to whether the Lower Court had committed illegality in dismissing such application? 3. I would like to fumigate my mind with the provisions of law, i.e., Section 135 of CPC and also Order 18 of CPC. A cumulative reading of those provisions would amply make it clear that the Court has got the discretion to mandate the party to the litigation to produce his evidence in a particular manner. The contention of the learned counsel for the petitioner is that fraud has been pleaded by the plaintiff as against the defendant in creating a sale deed and in such a case, if the witnesses on the defendant's side are examined on different dates, certainly the plaintiff would be prejudiced in their establishing their case. I find considerable force in his submissions. At the first instance, the defendant should have necessarily produced the list of witnesses, but he has not done so. There is also no indication that the defendant has not produced any more witnesses other than D.W.1.-the defendant himself. When such is the position, the Court has got the discretionary power to defer the cross of the witnesses examined on the defendant's side so that the plaintiff would have liberty to cross-examine the defendant's witnesses at a stretch on the one and the same day, including D.W.1. and to that effect, such a direction could be issued in the facts and circumstances of the case. As such, the Lower Court was not justified in simply dismissing such prayer of the plaintiff. With these observations, the Civil Revision Petition stands allowed. and to that effect, such a direction could be issued in the facts and circumstances of the case. As such, the Lower Court was not justified in simply dismissing such prayer of the plaintiff. With these observations, the Civil Revision Petition stands allowed. Consequently, the connected miscellaneous petition is closed. No costs.