TUKARAM Vs. FULSINGH AND ORS.

JUDGEMENT

(1.) By this petition under article 227 of Constitution of India, the petitioner Tukaram Barela and others were aggrieved by the order dated 08/10/2013 passed by Civil Judge Class II, Ketiaya, District Badwani, M.P, closing the right of the defendant to lead evidence yet the Court did not finally decide the matter in terms of Order 8 Rule 10 of the C.P.C.

(2.) Briefly stated the facts of the case are that the petitioner had filed a Civil Suit for declaration and permanent injunction and the defendant had failed to file Written Statement and the Court taking action under Order 8 Rule 10 of the C.P.C. closed the right of the defendant to lead evidence and listed the matter for passing of final decision. However, the plaintiff had also filed an application under Order 39 rule (1)(2) of C.P.C. to which the defendants filed reply and in the reply it was also stated by the respondent that the closure of right to defend and listing the matter under Order 8 Rule 10 of C.P.C. was contrary to the provisions of law since the Court had failed to pass the order treating the matter to the ex-parte and even in the matter of injunction, and right of cross examination could not be closed. And considering the application the learned Judge of the lower Court has passed the impugned order dated 08/10/2013 and held that even if the Written Statement had not been taken on record in the reply to the application under Order 39 Rule (1)(2) of the C.P.C., the pleadings of the plaintiff had been controverted and hence it would be appropriate to grant opportunity of cross examination of the witnesses to the defendant and passed the order granting further date for hearing. Being aggrieved by the said order the petitioner has filed the present petition under rule 227 of Constitution of India.

(3.) Counsel for the petitioner vehemently urged the fact that under Order 8 Rule 10 of the C.P.C., clearly mandates that: