Consenting defendants must present evidence before contesting defendants to ensure procedural fairness and avoid strategic advantages.

JUDGMENT :

MANDEEP PANNU J.

1. The present revision petition has been filed by the petitioners challenging the correctness of the impugned order dated 21.08.2024 (Annexure P- 11) passed by the learned trial Court, whereby the application moved by contesting respondent Nos. 1 and 2/defendant Nos. 1 and 2 (hereinafter referred to as ‘respondent Nos. 1 and 2’) for exclusion of the affidavits filed by petitioners/proforma defendant Nos. 3 and 4 (hereinafter referred to as the ‘petitioners’) in their examination-in-chief was allowed.

2. In order to appreciate the controversy in its correct perspective, it would be apposite to notice the written statement filed by petitioners, which is placed on record as Annexure P-4. Perusal of the same reveals that petitioners have admitted the claim of the plaintiff- Satyajeet (proforma/respondent no.3- herein) except for denying that they are colluding with defendant Nos. 1 and 2. In the end, they have prayed that pleading is correct and admitted and that they have no objection in case the present case is decreed as prayed for. Since the petitioners had admitted the claim of the plaintiff-Satyajeet, there is no dispute that they are non-contesting defendants.

3. It is an admitted fact between the parties that after the close of the oral evidence of the plaintiff/respondent No.3 on 18.01.2023, the case was adjourned to 08.02.2023 for his documentary evidence and on 08.02.2023, plaintiff/respondent No.3 closed his documentary evidence and the case was adjourned to 29.03.2023 for defendant evidence, on which date the oral evidence of defendants/respondents No. 1 and 2 was closed after examining one DW and the case was adjourned to 22.05.2024 for documentary evidence on behalf of defendants No. 1 and 2 and defendant evidence on behalf of proforma defendants No.3 and 4 and defendant No.6 & 7.

4. Thereafter petitioner No.1/proforma defendant No.3-Omwati furnished affidavit in examination-in-chief on 22.05.2024. Similarly, petitioner No.2/proforma defendant No.4 furnished affidavit in examination-in-chief on the same date. The petitioners/proforma defendants No.3 and 4 moved an application for appointment of handwriting and fingerprint expert to verify/compare signatures of petitioners/proforma defendants No. 3 and 4 over alleged affidavit dated 20.06.2006 pleading therein that defendants No. 1 and 2 have submitted in their affidavits that proforma defendants No.3 and 4 had issued this affidavit dated 20.06.2006 for no objection if electricity connection is transferred in the name of defendant No.1.

5. Reply to application was also filed by contesting defendants No. 1 and 2/respondents No.1 and 2. Thereafter, on 10.07.2024, contesting defendants No. 1 and 2 /respondents No.1 and 2 filed an application for excluding affidavits filed by petitioners/proforma defendants No. 3 and 4 alleging therein that since they have filed an written statement admitting the claim of the plaintiff they were under an obligation to give their evidence before evidence of contesting defendants No.1 and 2/respondents No. 1 and 3 but since they never came forward to exercise their right, therefore, they have no right to file their affidavits at this stage, just to fill up the lacuna in their case.

6. Reply to the said application was filed. Vide impugned order dated

21.08.2024, the said application was allowed by the learned Trial Court.

7. Learned counsel for the petitioners has, in the first instance, argued that the issue as to which of the defendants should begin leading evidence is not specifically dealt with in Order XVIII of the Code of Civil Procedure , 1908 (for short ‘CPC’). It is submitted that a defendant supporting the case of the plaintiff is not debarred either expressly or impliedly from leading evidence, and that no party to the suit can be denied the right to tender evidence.

8. It is further argued by the learned counsel for the peti