SBCWP NO. 3982/10.

Firm Jhumar Lal Swaroop Lal Tiwari Vs. ADDl. Civil Judge (JD & Ors.

1

IN THE HIGH COURT OF JUDICATURE FOR

RAJASTHAN BENCH AT JAIPUR

SB CIVIL WRIT PETITION NO.3982/2010.

FIRM JHUMAR LAL SWAROOP LAL TIWARI –

PETITIONER.

VS

ADDL. CIVIL JUDGE (JR. DIV.), KARAULI & ORS.

– RESPONDENTS.

DATE OF JUDGMENT :

9TH FEBRUARY, 2012.

PRESENT

HON'BLE MS. JUSTICE BELA M. TRIVEDI

Mr. Rajnish Gupta for the petitioners.

Mr. Yogesh Singhal for the respondents.

BY THE COURT :

1.

The present petition has been filed

challenging the order dated 24.2.10

passed by the learned Addl. Civil

Judge

(Jr.

Div.)-cum-Judicial

Magistrate, Karauli (hereinafter

referred to as 'the trial court') in

Civil Suit No. 133/01, whereby the

trial court has allowed the

application of the respondent No.3-

original plaintiff filed under Order

XVIII Rule 3A closing the evidence

of the petitioner-Pradhuman Kumar,

proprietor of the firm Jhumar Lal

Swaroop Lal Tiwari.

SBCWP NO. 3982/10.

Firm Jhumar Lal Swaroop Lal Tiwari Vs. ADDl. Civil Judge (JD & Ors.

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2.

The short facts giving rise to the

present petition are that the

respondent No.3-original plaintiff

has filed the suit seeking permanent

injunction and possession of the

suit property against the present

petitioner and the respondent No.2

(original defendants). In the said

suit both the defendants had filed

separate written statements. The

case was thereafter fixed for

evidence and after the closer of the

evidence of the plaintiff, the case

was fixed for the evidence of the

defendant for the first time on

16.9.05. On the said date, the

petitioner

submitted

his

examination-in-chief on affidavit

and the respondent-plaintiff sought

time. Thereafter, it appears that

the parties had amended the

pleadings and issues were also re-

framed and defendants were permitted

to

further

cross-examine

the

witnesses of the plaintiffs already

examined. On 7.11.08 the evidence of

the plaintiff was closed and the

SBCWP NO. 3982/10.

Firm Jhumar Lal Swaroop Lal Tiwari Vs. ADDl. Civil Judge (JD & Ors.

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matter was fixed for the evidence of

the defendants. On 5.3.09 the

defendant No.2 Chiranji Lal was

cross-examined

and

his

other

witnesses were also cross-examined

by the plaintiff and the matter was

fixed for the cross-examination of

the other witnesses on behalf of the

defendant on 29.1.10. On 29.1.10,

the

respondent

No.3-plaintiff

submitted an application under Order

Rule 3A of CPC praying interalia to

close the evidence of the present

petitioner-defendant No.1 and the

court vide impugned order dated

24.2.10

allowed

the

said

application. Being aggrieved by the

said order the present petition has

been filed by the petitioner.

3.

It has been submitted by the learned

counsel Mr. Rajnish Gupta for the

petitioner firm that the impugned

order passed by the trial court

suffers from non-application of mind

inasmuch as the provisions contained

in Order XVIII Rule 3A of CPC could

not be invoked by the plaintiff for

SBCWP NO. 3982/10.

Firm Jhumar Lal Swaroop Lal Tiwari Vs. ADDl. Civil Judge (JD & Ors.

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closer of evidence of the defendant.

Referring to the various order-

sheets produced on record, the

learned counsel has submitted that

after the closer of the evidence of

the plaintiff, the suit was

adjourned from time to time for the

cross-examination of the witnesses

for the defendants by the plaintiff

on the basis of the affidavits filed

by the witnesses for the defendants.

He

also

submitted

that

the

petitioner had already filed his

affidavit as back as on 16.9.05 and

thereafter various proceedings had

taken place including the amendment

of pleadings and further cross-

examination of the witnesses for the

plaintiff and cross-examination of

the witnesses for the defendants.

Accordingly to him both the

defendants