RAM SINGH Vs. KISHANPYARI

JUDGEMENT

(1.) SHRI P.C. Chandil, Advocate for the petitioners. Shri J.P. Mishra, Advocate for the respondents No. 1 to 6. I.A. No. 7895/2012 for amendment/correction is taken up and in absence of any opposition from Shri J.P. Mishra, I.A. is allowed. Petitioners are directed to incorporate it forthwith. On the joint request of the parties, matter is finally heard. By invoking the jurisdiction of this Court under Article 227 of the Constitution, the petitioners have called in question the orders dated 21.12.2011 (Annexure P-1) and 09.08.2011 (Annexure P-2). By impugned orders, petitioners' two applications preferred under section 151 of CPC (Annexure P-10) and Order 16 Rule 1 read with section 151 CPC (Annexure P-11) are rejected by the court below.

(2.) BY preferring application (Annexure -10), it is stated that the matter was listed before the trial court on 12.09.2011 for examination in chief of the defence witnesses. On the said date, there was a condolence meeting because of death of some advocate and, therefore, affidavit of all the defence witnesses could not be filed. On 10.10.2011, it is stated that the affidavits of other witnesses have been filed and they be cross- examined by the plaintiffs. In the second application (Annexure P-11), it is stated that one Bhagirath is a listed witness for the defendants but he is influenced by the plaintiffs and, therefore, he on his own is not willing to enter the witness box and, therefore, summons be issued to him.

(3.) SHRI Chandil submits that the order passed by the court below runs contrary to settled legal position. By criticizing the order, by which Annexure P-10 is rejected, learned counsel relied on 2009 (3) MPLJ 688 (Mayadevi Kukreja Vs. Meera Agrawal and another), he submits that the defendant is under no obligation to produce all his witness/affidavit in one go. It is open for the defendant to lead further evidence after cross-examination of one witness. In other words, he submits that it is for the defendant to decide whether after leading evidence of one witness, he proposes to lead evidence of other witness. Learned counsel further submits that the order of the court below is bad in law inasmuch as his application Annexure P-11 is rejected.