KARAM SINGH Vs. DANA SINGH

JUDGEMENT

(1.) THIS revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenges order dated 22.8.2002 passed by the Additional Civil Judge (Sr. Division), Barnala dismissing the objections of the defendant-respondent to be presented as evidence and to be treated as examination-in-chief. The Civil Judge has placed reliance on the provisions of Order XVIII Rule 4(1) and (2) of the Code.

(2.) FACTS in brief unfolded in the present petition are that the plaintiff- respondent has filed Civil Suit No. 176 of 2000 on 14.12.2000 for recovery of Rs. 38,000/- on the basis of a promissory note and receipt. Plaintiff- respondent by way of examination-in-chief filed affidavits which are Exs. P-A and P-B to which the defendant-respondent raised an objection arguing that the affidavits by way of evidence are not permissible to be filed in cases where the appeal is maintainable. Defendant-petitioner has relied upon the provisions of Order XVIII Rule 5 of the Code in this regard. The Civil Judge dismissed the application by rejecting the argument that the procedure for recording the evidence is to be governed by the provisions of Rule 4 of Order XVIII and the provisions of Rule 5 of Order XVIII of the Code would not be applicable.

(3.) AFTER hearing learned counsel for the defendant-petitioner, I am of the considered view that the argument raised on behalf of the defendant-petitioner is liable to be rejected because the provisions of Rule 5 of Order XVIII of the Code do not control the amended provisions made in Rule 5. Rules 4 and 5 of Order XVIII of the Code as amended are reproduced below for facility of reference :