SADANANDA BHANDARKAR Vs. SHANTHARAM ACHUTH BHANDARKAR AND ANOTHER

JUDGEMENT

(1.) DEFENDANT No. 1 in O.S. No. 286 of 1998 on the file of the Principal Civil Judge, Jr. Dn., Kundapur, has filed this writ petition challenging the order dated 2.8.2003 whereby the Trial Court has refused to take the evidence of Defendant No. 11 filed by way of affidavit on record holding that he should have been examined immediately after the Plaintiffs' were examined.

(2.) THE suit was filed for partition and separate possession of the properties in question. After service of summons, Petitioner has filed his defence supporting the case of the Plaintiffs. The PA holder of the Petitioner filed evidence by way of an affidavit. The said evidence was rejected on the ground that he should have filed the same immediately after the Plaintiffs' evidence.

(3.) THERE is no prohibition under Order 18, Rule 4 of Code of Civil Procedure for examination of the Defendant after the examination of the contesting Defendants merely because he has supported the Plaintiffs. In my view, the Trial Court has erred in not allowing the Petitioner for filing of the evidence by way of an affidavit on the ground that he should have lead his evidence immediately after Plaintiffs' evidence. It is always open for the contesting Defendants to cross -examine the Defendant supporting the Plaintiff.