SHIVNARAYAN SHARMA Vs. HARISHCHANDRA VERMA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India is directed against the order dated 1/12/2011 passed by the Fourth Civil Judge, Class-II, Vidisha in civil suit No.80A/2009. By the aforesaid impugned order, the trial court has called upon the petitioner/defendant no.3 to submit his examination-in-chief by way of affidavit under Order 18, Rule 4 CPC before cross examination of defendants no.1 and 2 on the prayer of the plaintiffs/landlords.

(2.) Facts necessary for disposal of this petition are to the effect that plaintiffs have filed a suit for eviction, delivery of possession and recovery of arrears of rent against the defendants on the ground of subletting amongst others. As per the plaint allegations, defendants no.1 and 2 were the original tenants, however, without knowledge, consent and permission of the plaintiffs, defendant no.3 has been inducted as subtenant in the suit premises. The suit is at the stage of examination of defendants' witnesses. Plaintiffs have filed an application under Section 151 CPC praying before the Court that as defendant no.3 is the subtenant, therefore, he may be called upon to file his examination-in-chief in the form of affidavit under Order 18, Rule 4 CPC along with affidavits filed by defendants no.1 and 2 before their cross examination. If it is not done, on cross examination of defendants no.1 and 2, plaintiffs' case shall be opened and defendant no.3 shall get opportunity to prepare his affidavit against the case of plaintiffs and, therefore, in the interest of justice defendant no.3 be directed to file his affidavit of evidence. The application is resisted by defendant no.3/petitioner on the premise that defendants no.1 and 2 have already brought on record the fact that they have evicted the suit premises and in fact the plaintiffs have inducted defendant no.3 as tenant and, therefore, theory of subletting defendant no.3 is concocted and cannot be the basis of justification seeking direction from the court against defendant no.3 for the purpose of filing affidavit of evidence.

(3.) The trial court upon consideration of aforesaid submissions of the parties has ruled that it shall be in the interest of justice if the petitioner/defendant no.3 files his affidavit of evidence before cross examination of defendants no.1 and 2 commences.