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2021 DIGILAW 334 (RAJ)

Shivgopal Bhodiwal v. Nathuram Kumawat

2021-02-10

PRAKASH GUPTA

body2021
JUDGMENT 1. This writ petition has been filed by the petitioner-plaintiff (for short, 'the plaintiff) against the order dated 30.4.2019 passed by the Trial Court, whereby the application filed by the respondent-defendant no.3 under Section 138 of the Evidence Act has been disposed of granting leave to the defendant no.1 to file the amended affidavit in consequence of his written statement. 2. Facts of the case are that the plaintiff filed a suit for specific performance of the agreement dated 28.8.2003 and permanent injunction against the defendants. The defendants no. 1 and 2 file the written statement. Defendant no.1 Nathu Ram filed his affidavit. In evidence, the defendant no.3 filed an application under Section 138 of the Evidence Act: 3. The Trial Court vide its order dated 30.4.2019 disposed of the said application in following terms : 4. Hence, this writ petition. 5. Learned counsel for the plaintiff submits that in the application under Section 138 of the Evidence Act, the defendant no.3 only sought permission to cross-examine the defendant no.l, but the trial court granted relief beyond the prayer made in the application and permitted the defendant no.1 to file amended affidavit. On this count, the impugned order is liable to be quashed and set-aside. 6. On the other hand, learned counsel for the defendants supported the impugned order and stated the same to be just and proper. 7. Heard. Considered. 8. From a conjoint reading of the application under Section 138 of the Evidence Act, reply filed thereto and the order dated 30.4.2019 passed by the Trial Court, it is evident that the defendant no.3 only sought permission to cross-examine the defendant no.1, but the trial court travelled beyond the prayer and permitted the defendant no.1 to file amended affidavit. 9. In this view of the matter, the trial court is found to have committed an illegality while disposing the application granting leave the defendant no.1 to file the amended affidavit. 10. Taking into consideration the facts and circumstances of the case, the impugned order dated 30.4.2019 is quashed and set-aside. The matter is remanded to the Trial Court with a direction to decide the application under Section 138 of the Evidence Act afresh on its own merits without being influenced by its previous order dated 30.4.2019. 11. Both the parties are directed to appear before the Trial Court in this regard on 10.3.2021. 12. The matter is remanded to the Trial Court with a direction to decide the application under Section 138 of the Evidence Act afresh on its own merits without being influenced by its previous order dated 30.4.2019. 11. Both the parties are directed to appear before the Trial Court in this regard on 10.3.2021. 12. The writ petitions stand disposed of accordingly. Consequent upon the disposal of the writ petition, stay application also stands disposed of and the ex-parte interim order dated 29.5.2019 is vacated.