ORDER

This petition under Article 227 of the Constitution of India has been filed against the order dated 02.12.2022 passed by 4th Civil Judge, Senior Division, Morena in Civil Suit No.50-A/2017, by which right of the petitioner to examine Brajesh Kumar as a witness has been closed.

2. The facts necessary for disposal of the present petition in short are that by order dated 08.08.2019 passed by 3rd Civil Judge, Class-I, Morena in Civil Suit No.50-A/2017 the right of the petitioner to examine other witnesses was closed. The said order was challenged by the petitioner by filing M.P. No.4896/2019 which was decided by order dated 15.10.2019 with following observations: 10.

has not committed any error in rejecting the application under order 16 Rule 1 of CPC for summoning the Brijesh Sharma, but has wrongly closed the right of leading the evidence as plaintiff has filed an application for adjournment on the next date the learned trial court ought to have considered the same and granted 15 days' time. Thus, considering the aforesaid, the order impugned to the extent of closing the right of the plaintiff to lead evidence is hereby set aside. An one opportunity is granted to the plaintiff to call Brajesh Kumar for cross-examination and to lead his evidence before the trial court on the next date of hearing.

11.

order 26 Rule 1 is concerned for examination of the plaintiff Ganga Devi on commission is concerned as it is an admitted that she is a Pardanasin lady it is not disputed by the defendant also therefore, under such under such circumstances, the learned trial court has committed an error in rejecting the application. However, as no affidavit was filed by the plaintiff along-with the application, which is curable defect, therefore, the learned trial court ought to have been granted one opportunity to the plaintiff to file an affidavit in support of his application. Thus, the orders impugned are hereby set aside the learned trial Court is directed to permit the plaintiff to examine Brajesh Kumar Sharma for cross-examination on the next date of hearing and if an affidavit has been filed in support of the application under Order 26 Rule 1 of CPC within a period of (7) seven working days, the learned trial court is directed to permit examination of plaintiff through Commission. Aforesaid directions are given in the interest of justice as they are the main witnesses to be examined before the trial court on which foundation of Civil suit is based upon.

Therefore, the Misc. Petition is allowed.

3. It is submitted by the counsel for the petitioner that it is true that earlier the petitioner had sought the examination of the plaintiff on commission, but after grant of opportunity by this Court, the petitioner moved an application that she is ready to give her evidence in the Court and, accordingly, by order dated 18.11.2021, prayer made by the petitioner was allowed. Thereafter, the petitioner got an information that the respondent No. 2 has expired, therefore, an application under Order 22 Rule 4 of CPC was filed on 14.12.2021 which remained pending till 16.11.2022 and by the said order, the application for bringing the legal representatives of the defendant No. 2 was allowed and the delay in filing the application for setting aside the abatement as well as for condonation of delay in filing the the application for setting aside the abetment were allowed. Thereafter, the case was fixed for 23.11.2022.

On 23.11.2022 the petitioner sought one more opportunity to produce the witness and the case was adjourned for 25.11.2022. On 25.11.2022 an application for amendment was filed under Order 6 Rule 17 of CPC which remained pending till 28.11.2022 and on the said date, the application filed under Order 6 Rule 17 of CPC was withdrawn by the petitioner. Thereafter, on 02.12.2022 the plaintiff and her witness Brajesh Kumar were present. The plaintiff was examined and cross- examined, but the Trial Court refused to examine Brajesh Kumar on the ground that