Madhya Pradesh High Court
Gordhan vs Dinesh on 3 August, 2017
W.P. No.3517/2017
03.08.2017
Shri J.B.Dave, learned counsel for the petitioner.
Shri Nitin Phadke, learned counsel for the respondents
No.1 to 4.
Petitioner has filed the present petition being aggrieved by the orders dated 13.05.2016 and 16.05.2017 by which his right of evidence has been closed.
The respondent/plaintiff has filed the suit for permanent injunction and possession in respect of agriculture land bearing survey No.194 area 1.682 hectare. After notice the present petitioner/defendant No.1 filed written statement as well as counter claim in respect of the same suit property.
On the basis of pleading the trial court has framed the issues for adjudication. The plaintiff has closed his evidence and the defendant No.1 was directed to produce his witnesses on 13.05.2016. The defendant examined Ratan Singh as DW-2 and who was cross-examined and released. The defendant No.1 filed an application that he want to examine one more witness Vimal, who could not come as he is busy in the marriage. The application was opposed. Learned trial court vide order dated 13.05.2017 rejected the application and closed the right of evidence, thereafter the defendant No.1 has again filed an application for examining Vimal as a witness. Vide order dated 16.05.2017 trial court has rejected the application on the ground that sufficient opportunities have been granted and the case is 5 years old. Hence, the present petition has been filed.
Shri J.B.Dave, learned counsel for the petitioner submits that one opportunity be given and he shall keep present all his witnesses before the court. Shri Sonu, Narsingh and Shamsher have already filed their affidavits before the court.
Shri Nitin Phadke, learned counsel for the respondent has opposes the prayer and submits that sufficient opportunities have already been granted to the petitioner.
On 13.05.2017 the defendant No.1 has examined his witness Ratan Singh and he was cross-examined and, therefore, out of five witnesses he has already examined two witnesses. Affidavits of three witnesses have already been filed under Order 18 Rule 5 of CPC, therefore, the defendant No.1 cannot said to be grossly negligent. Due to some personal problems he could not produce the remaining witnesses. Since the defendant No.2 is an ex parte and the present defendant No.1/petitioner is only contesting the case, therefore, in the interest of justice one opportunity is granted to him to produce all the three witnesses on 31-08-2017. Hence, defendant/petitioner shall keep all the three witnesses present in court and they shall be cross-examined by the plaintiff on the said date. Subject to availability of time the court may fix another date for cross-examination.
Petition is allowed with cost of Rs.1,000/- which shall be deposited in the Bar Association. It is expected that Bar Association shall utilize this amount for purchase of law books.
C.c. as per rules.
(Vivek Rusia) Judge ns