CHHAYA BHANDARI Vs. RAJU DHIBAR

JUDGEMENT

(1.) The petitioner, who is the plaintiff in Title Suit No.49 of 2011, is aggrieved of order dated 19.04.2017 by which her application for taking her examination-in-chief on record has been rejected.

(2.) Plea urged on behalf of the petitioner is that by refusing permission to her to examine herself in the suit the trial Judge has failed to exercise a jurisdiction which is legally vested in it under Order-XVIII, more particularly, Rule 16 and 17 CPC.

(3.) Title Suit No.49 of 2011 has been instituted for a decree for declaration of the plaintiff's right of pre-emption over schedule-B land and for a decree directing the defendant nos.4 and 5 to execute a sale-deed in favour of the plaintiff transferring schedule-B land to her. The plaintiff has claimed that she has purchased a piece of land comprised under Khata No.30 (new Khata No.478) within plot no.1565, area about 5 decimals from respondent no.1 through a registered sale-deed dated 08.08.2006 and she has been paying rent to the State of Jharkhand after mutation in respect of the suit land in her name. Further case setup by the plaintiff is that the respondent no.1 agreed to sell the adjacent land to her which is described under schedule-B, however, in the meantime, on 24.05.2010 she found that the defendant nos. 4 and 5 have purchased schedule-B land from the defendant nos.1 and 3 for a consideration of Rs.3 Lacs. During the trial, the plaintiff proposed to examine herself as PW-1 and she filed her examination-in-chief on 13.02.2014. On her application a commission was appointed for her cross-examination, however, due to her illness she could not appear before the Pleader-Commissioner for her cross-examination and accordingly a report was transmitted to the court concerned. By an order dated 12.05.2014, the plaintiff's examination-in-chief was expunged from the records and thereafter she has produced two other witnesses. Application for recall of order dated 12.05.2014 has been dismissed in default by an order dated 15.05.2015 and her application dated 06.10.2016 for taking her examination-inchief on record has been declined by the impugned order dated 19.04.2017.