AKHILESH SINGH Vs. KRISHAN BAHADUR SINGH

JUDGEMENT

(1.) This petition under Article 227 of the Constitution is filed at the instance of defendant No.6 and 7 against the impugned order dtd. 30/11/2021 (Annexure P/9) passed by IVth District Judge, Satna.

(2.) A Civil Suit No.1-A/2014 is pending before the trial court seeking decree of specific performance of contract dtd. 17/1/2017 and declaring the sale deed dtd. 15/3/2013 and 17.04.20013 executed in favour of defendants No.4 and 5 to be null and void to the extent of share of the plaintiff and for permanent injunction against the defendants. The petitioners in the present petition are defendants No.6 and 7 in the civil suit. In the trial court, the evidence of defendant No.1 was recorded. However, defendant No.6 was not given opportunity to cross examine defendant No.1 and the statement of defendant No.1 was against the defendant No.6 and, therefore, his prayer for cross- examination was accepted by this Court, vide order dtd. 8/1/2020 passed in W.P.No.10710/2017.

(3.) In pursuance to the order passed by this court, on 5/3/2020, the learned trial court appointed the Court Commissioner to record the statement of D.W.1 as the said witness was unable to stand on his legs because of his old age. It appears that on the said date the cross- examination of D.W.-1was conducted and evidence was filed by the Court Commissioner. It appears that respondent No.1/ plaintiff on the same date filed an application before the trial court seeking direction to first testify/ verify the mental and hearing condition of D.W.1, who, according to him was impaired. On 26/11/2021, the trial court questioned D.W.1 and it was found that D.W.1 although was of old age but he was able to hear and answer the question as per his understanding. On 30/11/2021, an objection of respondent No.1 to the said effect was rejected. The trial court, however, has rejected the cross-examination of D.W.1 recorded on 5/3/2020 on the ground that respondent No.1/ plaintiff was not noticed and said cross-examination was conducted in his absence.