LAWS(MPH)-2005-2-44

PREMCHAND JAIN Vs. ASHOK KUMAR AGRAWAL

Decided On February 15, 2005
PREMCHAND JAIN Appellant
V/S
ASHOK KUMAR AGRAWAL Respondents

JUDGEMENT

(1.) CHALLENGE in this petition under Article 227 of the Constitution is made to a order passed by the learned Court below staying the cross examination of the plaintiff which was being held on 20-1-05, thereafter directing the witness to be re-examined for the purpose of exhibiting certain documents. It is submitted by Shri Bharadwaj that once the cross examination of a witness had commenced then in accordance with the provisions of Section 138 of the Evidence act, re-examination of witness is permissible only after the cross examination is concluded and if re-examination is necessary being in accordance with the provision of law. It is submitted by Shri Bhardwaj that merely because some documents have not been exhibited and some defect is pointed out in the process of examination in chief of witness concerned, learned court could not interfere in the matter of cross examination, direct for suspending cross examination and ordering its continuation after exhibiting the documents. It is argued that such a procedure followed is contrary to the provisions of Section 138 of the Evidence Act and inconsistent to the law laid down by the Supreme Court in the case of Sukhwant Singh Vs. State of Punjab, AIR 1995 SC 1601.

(2.) REFUTING the aforesaid Shri P. C. Chandil, learned Counsel submitted that after amendment to the code of civil procedure, the statutory requirement is of submitting examination in chief in the form of a affidavit and in certain cases some difficulties are being observed. In the present case as the original documents were in the file of the Court, they could not be exhibited at the time when affidavit was prepared and submitted in the Court, the said defect was being cured by the impugned order. Contending that the order impugned in no way substantially effects the right of the petitioner, it does not cause any prejudice or injustice to the petitioner it is submitted that at this stage petition under Article 227 of the Constitution is not maintainable.

(3.) I have heard learned Counsel for the parties and perused the records.