HANUMANTHE GOWDA Vs. A NAGARAJU

JUDGEMENT

(1.) THE petitioners are the legal representatives of deceased defendant in O. S. No. 2072/91 pending on the file of VIII Addl. City Civil Judge, Bangalore. They have filed this writ petition praying to set aside the order dated 30-9-2002 passed by the trial court setting-down the case for the evidence of defendants after the plaintiff filed affidavit of evidence and closed his side. The said order is passed by the trial court in accordance with Rule 4 (1) of Order 18 C. P. C. after amendment of certain provisions of C. P. C. which have been upheld by the Honble Supreme Court in the case of SALEM ADVOCATE BAR ASSOCIATION. TAMIL NADU VS UNION OF INDIA reported in 2002 (6) ALD 34 (SC ).

(2.) DESPITE upholding of amended provisions of C. P. C. the impugned order is sought to be set aside placing strong reliance upon Rule 2 (2) of order 18 C. P. C and Section 138 of the Indian Evidence Act contending that the procedure contemplated therein shall be scrupulously followed for taking evidence. Learned counsel for the petitioners placed much emphasis on the word then occurring in sub-rule (2) of Rule 2 of Order 18 C. P. C to contend that only after the evidence of the plaintiff is closed, the defendant has to adduce evidence. According to him, before cross-examination of plaintiffs evidence, defendants cannot be called upon to produce their evidence.

(3.) IN order to consider the contentions urged, the relevant provisions of order 18 C. P. C are extracted only to the extent they are required: -2. STATEMENT AND PRODUCTION OF EVIDENCE: (1 ). On the day. . (2 ). The other party shall then state his case and produce his evidence (if any) and may then address the court generally on the whole case. (emphasis supplied) (3) (4) Recording of Evidence by Commissioner: (1) in every case, from a plain reading of the above provisions it is clear that under sub-rule (1), Rule 2 of Order 18 C. P. C the party having right to begin shall state his case and produce evidence. Thereafter, the other party shall state his case and produce his evidence as provided under sub-rule (2) thereof. That is what the trial court followed in the instant case. The plaintiff was allowed to state his case by way of affidavit as provided under sub-rule (1) of Rule 4 of order 18 C. P. C. Under sub-rule (2) of Rule 4, Cross-examination and re-examination will be taken on the basis of the evidence adduced by way of affidavit. In other words, what ever stated in affidavit evidence is subject to cross-examination by the other party. Thus, the right of cross-examination is not taken away. As long as that right is available to the other party, no harm or prejudice will be caused to either of the parties.