GURMALI CHAND Vs. ASHOK VERMA

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution of India prays for quashing the order dated 12-2-2004 passed by the Civil Judge (Jr. Division}, Chandigarh dismissing the application of the defendant-petitioner wherein objection was raised with regard to the sequence of examination of witnesses of the plaintiff respondent by relying on the provisions "of Order XVIII, Rule 3A of the Code of Civil Procedure, 1908 (for brevity 'the Code'}. It is appropriate to mention that plaintiff-respondent has filed a civil suit for permanent injunction against the defendant-petitioner restraining him from interfering in the possession of the suit land allegedly owned by him. Plaintiff-respondent has produced the first witness who examined-in-chief on 12-6-2003 and on the request of the counsel for the defendant-petitioner the examination-in-chief was deferred and he was cross-examined on 5-9-2003. Thereafter the plaintiff-respondent examined another witness also. The order passed by the ld. Civil Judge reads as under :

(2.) Shri Mahesh Gupta, learned counsel for the defendant-petitioner has argued that the provisions of Order XVIII, Rule 3A of the Code are mandatory in character and the sequence of examination of witnesses could not be changed. Accordingly, the learned counsel submits that the parly i.e. the plaintiff-respondent should himself have taken the witness stand first as his own witness unless he was able to convince the Court for deferring his examination for a later date by allowing the examination of other witnesses. Learned counsel has further argued that the reasoning adopted by the Civil Judge suffers from inherent fallacy in so far as it has been said that the defendant-petl-tloner had failed to object to the appearance of other two witnesses at the stage of their examination and in fact happily cross-examined them because in the list of witnesses the plaintiff-respondent was not cited as a witness. Therefore, the order of the ld. Civil Judge is liable to be set aside.

(3.) Having heard the learned counsel at some length. I am of the considered view that this petition is liable to be dismissed. Order XVIII, Rule 3A of the Code which is relevant for deciding the instant petition read as under : Order XVIII. Hearing of the suit and examination of witnesses.