Bahadur Singh vs Harpreet Singh

Sabina, J.—Plaintiff had filed a suit for recovery placing reliance on pronote and receipt. Vide the impugned order dated 29.1.2011, the evidence of the Defendant has been closed. Hence the present petition.

Learned Counsel for the Petitioner has submitted that on 29.1.2011, the cross examination of DWV.B. Bhatnagar was concluded. The Petitioner also tendered his affidavit. However, the same was not accepted in evidence by the trial court.

Vide order dated 6.7.2010 in Civil Revision No. 3537 of 2009, this Court had given the following directions:

In view of the said facts, the order passed by the learned court is set-aside. While allowing this Revision Petition and permitting the Defendant-Petitioner to amend the written statement, the Petitioner is directed to lead his entire evidence in two opportunities. The Defendant-Petitioner shall file his affidavit in evidence within one week of the Plaintiff closing his evidence. Thereafter, the court shall gave two opportunities to the Defendant-Petitioner within two months on which dates the Defendant-Petitioner shall be bound to conclude his entire evidence. In that event if he fails to tender his evidence after the closing of the evidence of the Plaintiff and fails to conclude his evidence in two opportunities, the evidence of the Defendant shall be deemed closed.

On 11.11.2010, replication to the amended written statement was filed. Learned Counsel for the Plaintiff made the statement that the Plaintiff did not want to lead any further evidence and the case was adjourned for Defendant evidence. On the adjourned date i.e. 14.12.2010, DW V.B. Bhatnagar was present and tendered his affidavit. Cross examination of the said witness was deferred at the request of the counsel for the Plaintiff. On 14.1.2011, the witness was present but his cross examination was deferred at the request of the counsel for the Defendant. On 29.1.2011, the cross examination of DW -V.B. Bhatnagar was concluded. Counsel for Defendant placed on record affidavit of Bahadur Singh as a witness.

From the impugned order dated 29.1.2011, it is not clear as to whether the Petitioner Bahadur Singh was present on the said date or not. However, since the affidavit of Bahadur Singh was tendered on record, a presumption can be raised that the witness was also present on the said date. In these circumstances, the trial court should have recorded the statement of Bahadur Singh.

Accordingly, this petition is allowed. The impugned order dated 29.1.2011 is set aside and the trial court is directed to grant one opportunity to the Petitioner to examine himself as a witness. However, the Petitioner will not be allowed to examine any other witness.