AMITA J.S. KAKODKAR Vs. NAGRAJ KALE

JUDGEMENT

(1.) HEARD Mr. Mulgaonkar, learned Counsel for the petitioners and Mr. Sardessai, learned Counsel for the respondents. Constitution of India, the petitioners challenge the order dated 30th September, 2010 passed by the Civil Judge, Senior Division, Margao in Special Civil Suit No. 124/2009/II by which the application dated 22nd December, 2009 filed under Order 10 Rule 1 of C.P.C. for examination of defendant no.1 has been dismissed.

(2.) THE petitioners herein filed the above suit on 13th August, 2009 against the respondents seeking permanent injunction, eviction and mesne -profits. The defendants filed written statement on 3rd November, 2009. On 22nd December, 2009, the plaintiffs filed an application seeking examination of defendant no. 1 on the ground that the written statement filed by defendant no.1 was vague and evasive. The application was opposed on behalf of the defendants. By the impugned order dated 30th September, 2010, the learned trial Court dismissed the application on the ground that the defendants have dealt with the plaint parawise. The trial Court treated the application to be one under Order 10, Rule 2 of C.P.C. and held that since the defendants have dealt with the plaint parawise, no case was made out for examination of defendant no. 1.

(3.) PER contra, Mr. Sardessai, learned Counsel for the respondent submitted that since issues have been framed on 7th March, 2011 in the suit, the application filed under Order 10, Rule 1 of C.P.C. cannot be granted at this stage since it is settled legal position that the party cannot be examined under Order 10, Rule 1 of C.P.C. after issues are framed. Mr. Sardessai further submitted that the plaintiffs themselves submitted draft issues on 2nd November, 2010 and as such, the conduct of the petitioners clearly disentitles them from getting any relief in the present petition in as much as the petitioners/ plaintiffs at no point of time requested the trial Court not to frame issues, but on the contrary assisted the trial Court in framing of the issues by submitting draft issues on 2nd November, 2010. Mr. Sardessai lastly, therefore, submitted that the issues having been framed, no interference is warranted even if the reasons given by the trial Court for passing the impugned order are unsustainable.