PANNI BAI Vs. PREMA DEHARIYA

JUDGEMENT

(1.) This petition under Art. 227 of the Constitution of India has been filed challenging the order dated 15.11.2017 by which rejecting the application under Order 17, Rule 1 of the Code of Civil Procedure (for short CPC) time to adduce the evidence of plaintiff No. 1 herself has been refused and the affidavit under Order 18, Rule 4 Civil Procedure Code filed has also been denied to be taken on record because 19 opportunities have already been granted to the petitioners and the plaintiff No. 1 herself is not an enlisted witness. More so, after disclosing the fact that except the enlisted witness no other witness to call by the plaintiff is estopped as per her stand.

(2.) Learned counsel for the petitioners contends that Order 16, Rule 1 Civil Procedure Code applies in a case where the evidence on behalf of the plaintiff is required to be brought on record, but not in a case where the plaintiff himself is asking for examination in a court. Similar is the position with respect to the finding of estoppel whereby before the court it has been stated that no other witness of the plaintiffs be called for. As per Order 16, Rule 1 Civil Procedure Code finding of estoppel would not operate against the plaintiffs. It would be for their witnesses. In the case of granting of various dates, on some of the dates the court was not available and the Presiding Officer was on leave or otherwise the court was vacant, therefore time was granted then the petitioner cannot be blamed for the same. In that view of the matter, it is urged that the order passed by the trial court is not in accordance with law.

(3.) After having heard learned counsel for the petitioner, I find some substance in the arguments of the learned counsel for the petitioner, but simultaneously it cannot be ignored that the delay has been made on the part of the petitioners themselves, therefore, without issuing notice to the respondents because it would again delay the proceedings, if stay is granted. In this view of the matter, this petition is disposed of with a direction that subject to payment of cost of Rs. 2,000.00 within two weeks or prior to the next date fixed before the trial court statement of plaintiff No. 1 be recorded as per the affidavit already produced by her. The defendants shall be at liberty to cross examine the plaintiff No. 1. Thereafter they may lead their evidence.