1. Present petition has been filed under Article 227 of the Constitution of India seeking to set aside order dated 7th March, 2008 passed by Additional District Judge in Suit No. 537/2007 whereby respondent/defendant’s application under Section 73 of Indian Evidence Act, 1872 (hereinafter referred to as ‘IE Act’) was allowed.

2. Briefly stated, the material facts of this case are, that on 25th July, 2005 defence of respondent/defendant had been struck off. Respondent/defendant’s application for recalling the said order was dismissed on 13th September, 2005. A civil miscellaneous main petition being CM(M) No. 2545/2005 filed by respondent/defendant against said order was also dismissed by this Court on 24th October, 2005. Even a Special Leave Petition being SLP(C) No. 25073/2005 filed by respondent/defendant against said order was dismissed by Hon’ble Supreme Court on 31st July, 2006. Consequently, the order striking off defendant/respondent’s defence has attained finality.

3. When trial court disallowed respondent/defendant from confronting petitioner/plaintiff’s witness with certain rent receipts purportedly issued by previous owner Col. B.S. Gaind, respondent/defendant filed CM(M) No. 3167/2005 in this Court and the said petition was disposed of by this Court by observing that there was nothing which precluded respondent/defendant from confronting petitioner/plaintiff’s witness in cross-examination with documents which are not on record. This Court observed, “there is no dispute about the proposition of law that if the witness denies those documents, then those documents certainly cannot be exhibited and the occasion to exhibit those documents would only arise if the witness admits those documents. This is so since in cross examination, opposite party has a right to practically pull out a document out of its pocket and confront the witness with that document, which relates to that witness…….”

4. Pursuant to said order, respondent/defendant availed of the opportunity to cross-examine petitioner/plaintiff’s witness. The said witness was confronted with various documents. One document was admitted and exhibited, however other documents were denied and those were not exhibited. Thereafter, suit was fixed for final hearing.

5. It was at that stage respondent/defendant filed an application under Section 73 of IE Act read with Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) and made a prayer that his application be decided prior to final hearing of suit. In CM(M) No. 1246/2007 this Court ordered that respondent/defendant’s application should precede the final decision of main petition.

6. By the impugned order dated 7th March, 2008 trial court allowed respondent/defendant’s application under Section 73 of IE Act. The relevant portion of impugned order is reproduced hereinbelow for ready reference :- “I have gone through the relevant material. So far as the contention that Defendant could not have been allowed even to put suggestions in support of his defence, to the witness of Plaintiff nor was entitled to confront rent receipts to him are concerned the same cannot be raked up as the point in contention was decided by the Hon’ble High Court on 18.11.06 by a consent order. Simultaneously it needs to be observed that the veracity of the deposition of PW 2 cannot be assessed at this stage lest it would tantamount to prejudging the evidence. It would be exaggerated to contend that by comparing the signatures of a litigant with the aid of expert report, the court would be venturing to create evidence in favour of a party. If that were the interpretation to be adopted, the purpose of enacting section 73 in the Evidence Act would be rendered nugatory. The anxiety of Court is that parties have full opportunity to present their case within the confined legal limits and to ensure that handicap of a party may not be exploited by the other. Detailed appreciation of arguments raised on be