SHIV KUMAR JAIN Vs. STATE OF M.P.

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dated 12.12.2018 passed by the 11 th Additional District Judge, Gwalior in RCS No.38-A/2014 by which the right of the petitioner to examine his witness Kedar has been closed.

(2.) Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that earlier an ex-parte decree was passed in favour of the petitioner which was set aside on the application filed by the respondent and the said order was challenged by the petitioner before this Court by filing M.A. No.672/2011 and by interim order dated 11.05.2011 this Court had stayed the further proceedings in the civil suit and the said interim order has not been vacated so far. However, the trial Court by order dated 26.11.2018 resumed the proceedings in the light of the order passed by the Supreme Court in the case of Asian Resurfacing of Road Agency Private Limited & another vs. Central Bureau of Investigation in Criminal Appeal No. 375-376/13. On 26.11.2018 itself the plaintiff Shivkumar was present and he was examined and cross-examined and accordingly, the case was adjourned for

(3.) 12.2018 with a direction to the plaintiff to keep all his witnesses present. On 3.12.2018 an application was made by the petitioner seeking time to obtain stay order from the High Court and the said application was allowed and the petitioner was directed to either obtain the stay order or to keep his witnesses present on 10.12.2018. On 10.12.2018 the petitioner expressed that he has already filed the affidavits of Devaram Rathore and Kedar under Order 18 Rule 4 CPC, therefore, he may be granted some time to keep these witnesses present for their cross-examination and accordingly, the case was adjourned to 12.12.2018 with a stipulation that in case the witnesses do not appear, then the right of the plaintiff to lead evidence would be closed. On 12.12.2018 the plaintiff witness Devaram was present and he was cross-examined. However, the plaintiff witness Kedar was not well as he was suffering from loose motions, therefore he could not appear on 12.12.2018 and a prayer was made for want of one more opportunity but the said prayer has been turned down and the right of the petitioner to examine Kedar and the plaintiff evidence has been closed. 3. Challenging the impugned order dated 12.12.2018 passed by the trial Court, it is submitted by the counsel for the petitioner that it is true that the civil suit was pending for the last more than 10 years but the said had remained pending in view of the stay order passed by this Court in M.A. No.672/2011. The proceedings were resumed by the trial court by order dated 26.11.2018 in the light of the judgment passed by the Supreme Court in the case of Asian Resurfacing of Road Agenct Private Limited & another vs. Central Bureau of Investigation (supra) and on the same day the petitioner had examined himself and the case was adjourned to 3.12.2018. On 3.12.2018 an opportunity was granted to the petitioner to obtain the stay order and the case was fixed for 10.12.2018 and on 10.12.2018 two days' time was granted to the petitioner to keep his witnesses present and on 12.12.2018 one of his plaintiff witness was cross-examined whereas the another could not appear because he was suffering from loose motions. Thus, it is submitted that less than a month was granted to the petitioner for leading his evidence by the trial Court.