WASUDEO Vs. JAGANNATH

JUDGEMENT

(1.) ORDER :- This is a revision filed by the defendants against the order of the learned trial Court dated 26th July, 1984, by which their application dated 30-6-1984 for permission to cross-examine the plaintiff and his witnesses and to adduce evidence on their behalf was rejected.

(2.) Briefly the facts are that the plaintiff-non-applicant filed a suit on 30-8-1983 for possession and damages against the applicants/ defendants. The applicants/defendants filed their written statement on 12-1-1984. An application for amendment of the written statement filed by the defendants was allowed on 16-4-1984. The issues in the case were framed on 18-4-1984. Additional issues were also framed on 19-4-1984. The settling date was 20-4-1984 and, thereafter, the case was fixed for evidence on 21-4-1984. However, on the date the additional issues were framed on 19-4-1984, an application was filed on behalf of the applicants/defendants for giving the settling date or for fixing the case in the alternative for evidence after about a month. The case which was fixed for evidence on 21-4-1984, was adjourned to 24-4-1984 for evidence. The application of the defendants dated 19-4-1984 for fixing the case for evidence after a month was rejected on the same date i.e. 24-4-84 and the Court recorded the evidence of the plaintiff. According to the plaintiff the defendants were present at the time when the evidence of the plaintiff was recorded but the plaintiff was not cross-examined because their counsel was not present. According to the defendants they had gone to call their counsel at the time the evidence of the plaintiff was recorded. After recording the evidence of the plaintiff the case was closed for judgment on 25-4-1984. However, the judgment was postponed on 30-4-1984, because in the meanwhile the defendants had applied to the District Judge for transfer of the case under S. 24 of the Civil P.C. (for short C.P.C.), and the learned District Judge had granted interim stay of the passing of the judgment in the instant suit. After the application for transfer was withdrawn on 18-6-1984, by the defendants the case was fixed for judgment on 30-6-1984. On 30-6-1984 the defendants filed an application for permission to cross-examine the plaintiff and to adduce the evidence on their behalf which application was rejected by the order of the trial Court dated 26-7-1984. Being aggrieved by the aforesaid order the defendants have filed the instant revision in this Court

(3.) The learned trial Court rejected the application of the defendants for permission to cross-examine the plaintiff and to adduce evidence on their behalf on the ground that the said application was not maintainable after the case was closed for judgment. A short question, therefore, which arises for consideration is whether the application dated 30-6-1984 which is admittedly filed after the case was closed for judgment is maintainable. The learned counsel for the defendants has relied upon the provisions of the O. XVIII, R. 2 of the C.P.C. in support of his contention that the Court has power to permit for reasons to be recorded any party to examine any witness at any stage. Emphasis is upon the expression atany stage. It further appears that so far as the State of Maharashtra is concerned in R. 2 of O. XVIII C.P.C. which is applicable in the State of Maharashtra there is an explanation after sub-rule (3) which is identical to sub-rule (4) of R. 2 of O. XVIII. The explanation in R. 2 applicable in the State of Maharashtra says that nothing in this Rule shall affect the jurisdiction of the Court for reasons to be recorded to direct any party to examine any witness at any stage. Even under this explanation it is contended that there is a power to the Court to allow examination of any witness at any stage. According to the defendants the expression 'at any stage' would include the stage even after the case is closed for judgment till the delivery of the actual judgment. In support of his contention the learned Counsel for the defendants has relied upon a decision of the Orissa High Court in the case of Alekh Pradhan v. Bhramar Pal AIR 1978 Orissa 58,.