Piyush Mathur, J. :- 1. Defendand Gopal Das Renwal has preferred this Writ Petition under Article 227 of the Constitution of lndia against the order dated 1.5.2009 passed by the 8th Civil Judge Class-II Gwalior, in Civil Suit No.2-A/06, Smt. Dipika Jain v. Gopal Das Renwal, wherein the trial Court has permitted the Plaintiff to summon the attesting witness of the Will by issuance of summons.

2. The plaintiff has preferred a Civil Suit against the Defendant seeking eviction of the premises as also for recovery of the arrears of rent by claiming herself to be the landlady/owner of the suit property on the strength of a registered Will Dated 4.2.2001, which was executed in her favour by the original landlord Late Shri Kesharimal Jain.

3. Defendant Gopal Das Renwal while denying the averments of the plaint has questioned the genuineness of the Will executed in favour of the plaintiff by further denying the relationship of the landlord and tenant between the parties.

4. The Court after framing of the issues had allowed the parties to lead their evidence and when the plaintiff had examined her witnesses and intended to examine the attesting witness of the Will, namely, Mr. Vinod Kumar Agarwal, his presence could not be procured and the plaintiff prayed for the clouser of the evidence. At this poing of time, the defendant filed an application under Order XIX Rule 2 of the Code of Civil Procedure by making a prayer to the trial Court for directing the plaintiff to produce his witness Mr. Vinod Kumar Agarwal for cross-examination on his affidavit/examination-in-chief, but the trial Court had rejected this application filed on behalf of the defendant.

5. Defendant Gopal Das Renwal preferred Writ Petition No.539/09 against the order of rejection of the application preferred under Order XIX Rule 2 of CPC, wherein the Division Bench of this Court, while disposing of the Writ Petition on dated 25.2.2009, observed as follows :-

"So far as his examination-in-chief is concerned, if the defendant wants to reply on the said evidence, the defendant-petitioner can always reply on the same and the Court cannot say that the said examination-in-chief shall not be read at the time of deciding the case. Therefore, the Court has committed jurisdictional error in holding that the affidavit of Vinod Kumar Agarwal shall not be read at the time of decision of the case. As there is no cross-examination by the defendant in the present case, the defendant is ready and willing to cross-examine Vinod Kumar Agarwal. In such circumstances, he can definitely reply on the affidavit on behalf of Vinod Kumar Agarwal filed by the plaintiff and the Court can also draw an adverse inference against the plaintiff for not producing the said witness for cross-examination."

6. The plaintiff preferred a Review Petition being R.P.No.89/09 by demonstrating that the observation about drawing an adverse inference against the plaintiff is running counter to mandate of Law and while considering the legal provision and the prayer of the plaintiff, this Court observed as follows while disposing of the Review Petition :-

"After persuing the impugned order, we do not find that there is no mistake apparent on the face of the record. However, in the interest of justice we deem it fit to grant one more opportunity to tender Vinod Kumar Agarwal for cross examination by the defendant. Hence, we direct that if Vinod Kumar Agarwal is kept present by the plaintiff for cross-examination on the next date of hearing, he shall be cross-examined by the defendant."

7. Since this Court while disposing of the Review Petition had granted an opportunity to the plaintiff for presenting his witness Vinod Kumar Agarwal, an application was filed by the plaintiff under Order XVI Rule 1(3) of CPC explaining circumstances of not bringing the witness before the Court and for praying of summoning the witness through the Court.

8. The Defendant submitted reply to the application and demonstrated that summ