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2015 DIGILAW 2985 (ALL)

Mumtaz Jahan v. Mustaqeem Ahmad

2015-09-18

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. In Original Suit No. 153 of 1992, the defendant respondent filed an application 123 Ka, seeking amendment in the written statement. Thereby, the defendant sought to introduce a counter claim. It was allowed by the trial Court by an order dated 22 October 1993. The petitioners, thereafter, filed a replication to the counter claim. On the basis of the pleading made in the counter claim and the replication, additional issues were framed on 6 July 1995. 2. The defendant thereafter filed an application 235 Ga seeking permission of the trial Court to recall the plaintiff for cross-examination. The application was rejected by the trial court holding that the evidence of the plaintiff was closed long back and as such, the application for recall of plaintiff for cross-examination, without specifying the points on which further cross-examination was required, is not bona fide, and could not be allowed. Aggrieved by the said order, the defendant respondent preferred Civil Revision No. 98 of 2013. It has been allowed by the Revisional Court holding that the defendant respondent was entitled to adduce evidence in support of the counter claim, which was permitted to be incorporated by means of amendment. It has been observed that the counter claim is in the nature of a separate suit and thus, initially it is the defendant respondent, who is supposed to lead evidence and thereafter, he will have the opportunity to cross-examine the plaintiffs and their witnesses. Accordingly, the order passed by the trial Court has been set-aside and the application 235 Ga has been disposed of by directing the defendant respondent to first adduce his evidence in support of the counter claim and thereafter he will get the opportunity to cross-examine the plaintiffs and their witnesses. 3. Learned counsel for the petitioner submitted that the findings recorded in the order of the Revisional Court are self-contradictory. It is urged that the Revisional court on one hand has held that the defendant respondent is supposed to adduce his evidence in support of the counter claim and thus, according to counsel for the petitioner, the application for recalling the plaintiffs witnesses for cross-examination could not have been allowed. 4. However, this Court does not find any inconsistency in the order of the Revisional Court. 4. However, this Court does not find any inconsistency in the order of the Revisional Court. It is well-settled that the counter claim is in the nature of a cross suit and the Revisional Court was perfectly justified in holding that initially it is the defendant, who is supposed to adduce his evidence in support of the counter claim and it is only thereafter that he would get the opportunity of cross-examine the plaintiffs and their witnesses. Further, the Court is of the opinion that the order of the Revisional Court permitting cross-examination of the plaintiffs and their witnesses has been passed to advance the cause of justice and it would not be proper for this Court exercising power under Article 227 of the Constitution to interfere with such an order. The petition lacks merit and is dismissed.