Nain Singh vs Brikam Singh and Others

Rajiv Sharma, J.—The present petition is instituted against the order dated 31.7.2013 passed by the learned Civil Judge (Senior Division), Mandi, H.P., in Civil Suit No. 18/09.

Pertinent facts necessary for adjudication of this petition are that the petitioner/plaintiff (hereinafter referred to as the "plaintiff" for the sake of convenience) filed a suit for permanent prohibitory injunction against the respondents/defendants (hereinafter referred to as the "defendants" for the sake of convenience) for restraining them not to create any obstruction over the suit land, which was being used as path/road by the plaintiff. The illegal construction of brick stairs raised by the defendants was sought to be removed by a decree of mandatory injunction restoring the suit land to its original position. In the alternative, it was prayed that if the defendants raised any construction over the suit land during the pendency of the suit, which was being used by the plaintiff as path/road, the same be removed by a decree of mandatory injunction restoring the suit land to its original position.

The suit was contested by the defendants. Learned trial court framed the issues. The plaintiff led his evidence. The matter was adjourned to 23.2.2012 for recording the evidence of the defendants. Three witnesses on behalf of the defendants tendered their evidence by way of affidavits in examination-in-chief. Learned counsel appearing for the plaintiff prayed for and was granted time to cross-examine the defendants'' witnesses. The defendants moved an application u/s 151 of the CPC for withdrawal of the affidavit of one of the witnesses, namely, Nanki Devi. The plaintiff also moved an application u/s 138 of the Indian Evidence Act for allowing him to cross-examine Nanki Devi. These applications were clubbed together and decided by a common order dated 31.7.2013. Though, three witnesses on behalf of the defendants tendered their evidence by way of affidavits in examination-in-chief, however, their cross-examination was deferred. An application was moved by the defendants for withdrawal of the affidavit of Nanki Devi. The plaintiff could not force the defendants to produce all the witnesses for cross-examination merely on the ground that they have led their evidence by way of affidavits. The plaintiff has not raised specific ground why he wanted to cross-examine Nanki Devi. It was necessary for the plaintiff to make out a case that his case would be prejudiced in case the defendants were permitted to withdraw the affidavit of Nanki Devi. There is no illegality or perversity in the impugned order dated 31.7.2013.

Accordingly, in view of the discussion and analysis made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No order as to costs.