OM PRAKASH Vs. KAMAL KISHORE

JUDGEMENT

(1.) This revision petition has been filed against the order passed by the Chief Judicial Magistrate-cum-Civil Judge, Bhilwara closing the evidence of the plaintiff.

(2.) The suit was fixed on Nov. 13, 1980 in the trial court for recording the evidence of the plaintiff. The statement of the plaintiff was recorded on that date and it appears from the record that the plaintiff refused to sign the statement. The trial court closed the evidence of the plaintiff on the alleged ground that the plaintiff was not pre- pared to examine any other witness, The plaintiff filed an application in the trial court on the next date of hearing, i.e. on Feb. 19, 1981 stating that on the earlier date a clerk of the court recorded the statement of the plaintiff and the Presiding Officer was busy otherwise. While the cross-examination of the plaintiff was going on, learned counsel for the plaintiff objected to a question which was asked in cross examination by the learned counsel for the defendants on the ground that the -same was irrelevant. According to the plaintiff, the matter was referred to the Presiding Officer, who behaved in such a rough manner which enraged the learned counsel for the plaintiff so much that he walked out of the court. The plaintiff thereafter did not reply to the further questions put to him in cross-examination on account of the absence of his counsel, but the statement of the plaintiff was closed. The plaintiff was also unable to examine his other witnesses in the absence of his counsel and the evidence of the plaintiff was also closed. The plaintiff's application was supported by an affidavit in which he stated that the plaintiff's other witnesses were present in the court but in the absence of the counsel, the plaintiff was unable to examine his witnesses and the plaintiff expressed his helplessness before the court regarding examination of his witnesses in the absence of his counsel.

(3.) The defendant filed a reply to the plaintiff's application and Kamai Kishore defendant also filed an affidavit. 11 is apparent from a perusal of the affidavit of Kamal Kishore that the plaintiffs learned counsel left the court while the plaintiff's statement was yet incomplete, although according to him the direction of the court disallowing his objection was proper. The defendant Kamal Kishore also stated 'hat the cross-examination of the plaintiff was completed and it was not closed by the court. He further stated that the plaintiff himself had closed his evidence. I have also perused the statement of the plaintiff which was recorded on Nov. 13 1980. There is no doubt that it has been written by a clerk although the Presiding Officer has appended a note that it was written in his presence, on his dictation and within his hearing. But no reason has been assigned why the learned Civil Judge did not record the statement of the plaintiff himself. After the learned counsel for the plaintiff is said to have walked out of the court, the plaintiff did not reply to any one of the questions which were put to him and as such it cannot be said that his statement was completed. Moreover, the plaintiff did not sign the statement which was recorded on November 13, 1980 and as such the said unsigned statement cannot be read in evidence. It is apparent from a perusal of the affidavit of the plaintiff that the plaintiff's other witnesses were present in court on that day and this fact was not contested by defendant Kamal Kishore in his affidavit.