Rajendra Kumar vs Shivram Singh

Petitioner has filed the present writ petition being aggrieved by order dated 24/08/16 passed in Civil Suit No.464-A/13 by XXI Civil Judge Class-II,

Bhopal, District Bhopal, M.P., Shri Prakash Kumar Uikey.

Respondent Shivram Singh was plaintiff before the trial Court and he had filed a suit for eviction of petitioner Rajendra Kumar and also for arrears

of rent and mean profits. Petitioner Rajendra Kumar has filed a counter claim in the civil suit. An ex-party judgment and decree dated 06/08/2014 was passed in RCS No.464-A/13. Plaint filed by the respondent as well as counter claim filed by petitioner was dismissed by said judgment and decree.

Petitioner filed an application under Order 9 Rule 13 for setting aside ex parte decree so far as his counter claim is concerned. Vide order dated

23/04/2016 application filed by petitioner was allowed and case was brought to its original number. No appeal was filed by respondent-plaintiff challenging dismissal of the civil suit. By impugned order dated 24/08/16, application i.e. I.A. No.1/16 was dismissed by the trial Court. It was stated in this application that case was listed for evidence of defendant on his counterclaim and for filing evidence under Order 18 Rule 4 of C.P.C. for rest of the witnesses of defendant on issue No.6 and 7. Civil suit filed by the plaintiff has already been dismissed and he has not filed any appeal and therefore trial Court had committed an error on fixing the case for cross-examination by the petitioner on affidavit filed by him under Order 18 Rule 4

in support of his plaint.

Considered the counsel appearing for the petitioner as well as for respondent.

Trial Court has given an opportunity to the petitioner to cross-examine the plaintiff on his affidavit under Order 18 Rule 4 of C.P.C. Trial Court lost

sight of the fact that civil suit filed by the plaintiff has already been dismissed therefore case cannot be fixed by the trial Court for cross-examination of plaintiff on his affidavit. The application filed by the petitioner defendant for setting aside ex-parte decree against him on his counterclaim has been

allowed. Since application for setting aside ex-parte decree on the counterclaim of petitioner has been allowed therefore petitioner who is defendant has to adduce his evidence and his witnesses will be cross-examined by the respondent-plaintiff in the case. Respondent may adduce evidence of any on his written statement filed in reply to counterclaim after evidence of petitioner-defendant. Order dated 24/08/2016 in respect of IA No.1/16 is

quashed. Trial court has directed to list the matter for evidence of petitioner namely Rajendra Kumar and plaintiff-respondent namely Shivram Singh may be permitted to cross-examine the witnesses produced by the petitioner. So far as, order dated 24/08/16 is concerned which relates to rejection of an application for staying the trial till pendency of application under Section 24 of C.P.C. is concerned same is affirmed as trial cannot be stayed for long till pendency of application under Section 24 of Cr.P.C.

With the aforesaid observation, this writ petition filed by the petitioner is partly allowed and disposed off.