LAKHIWINDER SINGH Vs. MINNA VILLI DORIYA CHOUDHURY

JUDGEMENT

(1.) This writ application is directed against the order dated 24-1-2004 passed by the learned Civil Judge (Sr. Division), Baragarh in T.S. No. 37 of 1996 permitting the defendant No. 1 to be examined after examination of three witnesses on behalf of the defendants.

(2.) The petitioner has filed a suit for specific performance of contract or in the alternative for refund of consideration money. After closer? of the evidence from the side of the plaintiff-petitioner, three witnesses were examined on behalf of the defendants. After examination of the aforesaid three witnesses, the defendant No. 1 filed an affidavit as examination-in-chief. The question arose as to whether the defendant No. 1 could be examined and cross-examined after examination of three other witnesses from the side of the defendants. An objection was filed before the trial Court by the petitioner stating that the three witnesses were examined on behalf of the defendants- opposite parties without obtaining permission from the Court and, therefore, the defendant No. 1 cannot be examined after examination of the aforesaid three witnesses. The trial Court found that the suit being for specific performance of contract and the defendant No. 1 having denied the alleged contract is a material witness and therefore, his examination is necessary in the interest of justice and accordingly granted permission for examination of defendant No. 1.

(3.) The learned counsel appearing for the petitioner drew attention of the Court to Order 18, Rule 3(A), C.P.C. and submitted that where witnesses were examined on behalf of the defendants without obtaining permission of the Court, a defendant in the suit cannot be examined after examination of such witnesses. In this connection, reliance was placed by the learned counsel on a decision of this Court in the case of Swami Hari Harananda Giri v. Yogoda Satsangha Society of India, reported in AIR 1991 Ori 75. From the aforesaid decision, it appears that the trial Court by order dated 3-9-89 had allowed the prayer to the effect that the examination of the plaintiff shall be deferred and permitted the plaintiff to examine his other witnesses first on the application filed on behalf of the plaintiff. It was not disputed that on 12-12-89 the plaintiff had appeared in the Court below for swearing an affidavit and accordingly an application was filed on the next day by the defendant No. 1 with a prayer to the Court that since the plaintiff was hale and hearty and was available in the Court, the order dated 23-9-89 be recalled and he should be examined first as a plaintiff's witness in terms of Order 18, Rule (3A) of the Code of Civil Procedure. The Court on an analysis of the law and facts involved in the case held that examination of the plaintiff could be deferred for reasons to be recorded by the Court. On perusal of the entire judgment, it appears that the primary consideration before the Court is for imparting justice to the parties. The learned counsel for the opposite parties, on the other hand, referred to a decision of this Court in the case of Khaddi Kissan v. Thubra Kissan, reported in AIR 1988 Ori 55. In the said reported decision on the ground that the plaintiff was ailing and was being represented by a power of attorney in the Court, examination of the plaintiff was deferred. The learned counsel for the opposite party also relied on another decision of this Court in the case of Prabhat Kumar Behera v. Tahara Khatun, reported in AIR 1978 Ori 219. On perusal of all the three decisions, it is clear that for reasons to be recorded the trial Court may defer examination of either plaintiff or the defendant. In the present case, the trial Court has recorded reason that the suit is for specific performance of contract and the defendant No. 1 has denied the alleged contract for sale or his liability to refund money as claimed and therefore, he is a material witness for the purpose of the suit. I do not find any unreasonableness in the said finding of the trial Court. If the trial Court is of the view that examination of defendant No. 1 at a latter stage is necessary for arriving at the right conclusion, in my view, the discretion exercised by the trial Court is justified and need not be interfered with.