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Madhya Pradesh High Court · body

2019 DIGILAW 371 (MP)

Shiv Kumar Jain v. State of M. P.

2019-05-09

G.S.AHLUWALIA

body2019
ORDER 1. This petition under Article 227 of the Constitution of India has been filed against the order dated 12.12.2018 passed by the 11th Additional District Judge, Gwalior in RCS No. 38-A/2014 by which the right of the petitioner to examine his witness Kedar has been closed. 2. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that earlier an ex-parte decree was passed in favour of the petitioner which was set aside on the application filed by the respondent and the said order was challenged by the petitioner before this Court by filing M.A. No. 672/2011 and by interim order dated 11.5.2011 this Court had stayed the further proceedings in the civil suit and the said interim order has not been vacated so far. However, the trial Court by order dated 26.11.2018 resumed the proceedings in the light of the order passed by the Supreme Court in the case of Asian Resurfacing of Road Agency Private Limited and another v. Central Bureau of Investigation, in Criminal Appeal No. 375-376/13. On 26.11.2018 [Reported in 2018 (2) JLJ 94 ], itself the plaintiff Shivkumar was present and he was examined and cross-examined and accordingly, the case was adjourned for 3.12.2018 with a direction to the plaintiff to keep all his witnesses present. On 3.12.2018 an application was made by the petitioner seeking time to obtain stay order from the High Court and the said application was allowed and the petitioner was directed to either obtain the stay order or to keep his witnesses present on 10.12.2018. On 10.12.2018 the petitioner expressed that he has already filed the affidavits of Devaram Rathore and Kedar under Order 18 rule 4 CPC, therefore, he may be granted some time to keep these witnesses present for their cross-examination and accordingly, the case was adjourned to 12.12.2018 with a stipulation that in case the witnesses do not appear, then the right of the plaintiff to lead evidence would be closed. On 12.12.2018 the plaintiff witness Devaram was present and he was cross-examined. On 12.12.2018 the plaintiff witness Devaram was present and he was cross-examined. However, the plaintiff witness Kedar was not well as he was suffering from loose motions, therefore he could not appear on 12.12.2018 and a prayer was made for want of one more opportunity but the said prayer has been turned down and the right of the petitioner to examine Kedar and the plaintiff evidence has been closed. 3. Challenging the impugned order dated 12.12.2018 passed by the trial Court, it is submitted by the counsel for the petitioner that it is true that the civil suit was pending for the last more than 10 years but the said had remained pending in view of the stay order passed by this Court in M.A. No. 672/2011. The proceedings were resumed by the trial Court by order dated 26.11.2018 in the light of the judgment passed by the Supreme Court in the case of Asian Resurfacing of Road Agenct Private Limited and another v. Central Bureau of Investigation (supra) and on the same day the petitioner had examined himself and the case was adjourned to 3.12.2018. On 3.12.2018 an opportunity was granted to the petitioner to obtain the stay order and the case was fixed for 10.12.2018 and on 10.12.2018 two days' time was granted to the petitioner to keep his witnesses present and on 12.12.2018 one of his plaintiff witness was cross-examined whereas the another could not appear because he was suffering from loose motions. Thus, it is submitted that less than a month was granted to the petitioner for leading his evidence by the trial Court. 4. Per contra, it is submitted by the counsel for the State that on 10.12.2018 itself the trial Court had clarified that in case if the plaintiff fails to examine his witness on 10.12.2018, then his right shall be closed and under these circumstances, the trial Court has not committed any material illegality. 5. Heard the learned counsel for the parties. 6. It appears that the petitioner had filed a Misc. Appeal No. 672/2011 challenging the order by which an ex-parte decree passed in favour of the petitioner was set aside and this Court by order dated 11.5.2011 has stayed the further proceedings. 5. Heard the learned counsel for the parties. 6. It appears that the petitioner had filed a Misc. Appeal No. 672/2011 challenging the order by which an ex-parte decree passed in favour of the petitioner was set aside and this Court by order dated 11.5.2011 has stayed the further proceedings. On 26.11.2018 the trial Court resumed the proceedings in the light of the order passed by the Supreme Court in the case of Asian Resurfacing of Road Agenct Private Limited and another v. Central Bureau of Investigation (supra) and on the same day the petitioner was examined and cross-examined and the case was adjourned to 3.12.2018 and thereafter, it was adjourned to 10.12.2018. On 10.12.2018 at the request of the petitioner the case was adjourned to 12.12.2018 with a stipulation that no further adjournment shall be granted and in case if the petitioner fails to examine his witnesses, then his right will be closed. Thus, it is clear that the right of the petitioner to lead evidence has been closed within a period of one month from the date of resumption of the trial proceedings. Accordingly, this Court is of the considered opinion that the trial Court should have granted one more opportunity to keep his witness Kedar present before the Court for his cross-examination. Under these circumstances, this Court is of the considered opinion that the order dated 12.12.2018 is liable to be set aside. Therefore, the trial Court is directed to fix a short date for examination of Kedar and on the date so fixed by the trial Court the plaintiff petitioner shall be under obligation to keep his witness Kedar present before the Court for his cross-examination. 7. It is made clear that if the petitioner fails to keep his witness present, then this order shall automatically lose its effect and the right of the petitioner shall stand closed without any specific order by the trial Court. 8. With the aforesaid observation, the petition is disposed of and the interim order dated 11.5.2011 is hereby recalled. 9. Needless to mention that if so desired by the defendant, the trial Court shall also grant one opportunity to the defendant to examine its witnesses in rebuttal of the evidence which would come on record.