HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (Art. 227! No.1598 of 201 1 {Writ petition under Article 227’ of the Constitution of lndia} Present: Mr. Ankit Singhal, counsel for the petitioners. None present for the respondent. No representation is made. Single Bench: Hon’ble Mr. T.P. Sharma, J ORAL ORDER (29-8-201 1) . When the matter is called for hearing, none present for the respondent. No representation is made. . I.A.No.4 for taking service report on record, is allowed. Service report be taken on record. . Notice issued by registered post to the respondentLreceived un—served with endorsement that the respondent is out of station since last one month. Counsel for the petitioners has filed affidavit of Raju Agrawal, son of the petitioners herein, along with copy of Dasti notice which reveals that on 15-7-2011 the respondent was present in her house but she refused to receive notice. . By this writ petition under Article 227 of the Constitution of India, the petitioners have challenged legality and propriety of the order dated 25- 2-2011 passed by the Civil Judge Class-l, Pendra Road in Civil Suit No.153A/2005, whereby the trial Court has denied to take evidence of two witnesses of the petitioners herein on affidavit under Order 18 Rule 4 PETITIONER NO.1/: 1. Sitaram Agrawal, R/o (DefendantNo.1) ’ Agrawal, aged about 78 years, Opposite Shri Mahasati Mandir, Bhatapara, District Raipur, Chhattisgarh PETITIONER NO.2/ 2. Smt. Lakshmi Bai, W/o Shri Sitaram (Defendant No.2) Agrawal, aged about 65 years, R/o Opposite Shri Mahasati Mandir, Bhatapara, District Raipur, Chhattisgarh Versus RESPONDENT/: Smt. Naaz Akhtar, Wd/o Shri Abdul (Plaintiff) Rashid, aged about 48 years, R/o District Pendra, Teshil Pendra Rcad, Bilaspur, Chhattisgarh of the CPC on the ground that evidence of the defendants has been commenced since 7-1-2011 and the petitioners herein/defendants have not filed such evidence on affidavit on or before 7—1-2011. Again the case was adjourned for 5—3-2011 and thereafter for 15-3-201 1. . i have heard learned counsel for the petitioners, perused the order impugned and copies of other documents. . Learned counsel for the petitioners submits that finally the case has been Iisted for final arguments tomorrow i.e. 30-8-2011, before the trial Court. Learned counsel further submits that the respondent herein has not left her residence for one month, but is still residing in her residence and Dasti service has been refused by her. . Filing of- afhdavit in terms of Order 18 Rule 4 of the CPC, of any witness is evidence of the witness to facilitate the opposite party to enable and make him ready to cross-examine the witness after proper preparation. The courts shall adopt normal practice of directing the party to produce evidence in the form of affidavit under Order 18 Rule 4 of the CPC sufficient time before the date of his evidence or his cross-examination. However, the law does not preclude the witness to give his evidence on the date of evidence. . The order impugned and submission of counsel for the petitioners reveal that the petitioners are not seeking assistance of the court for production of witnesses, but the petitioners themselves have med evidence on affidavit of the witnesses which is on record. The petitioners are ready to produce and will produce the witnesses in court at the time of their further examination/cross—examination. ln these circumstances, virtually, the coUrt ought not to have dismissed or denied the prayer of the petitioners for taking such evidence on oath in terms of Order 18 Rule 4 of the CPC. While denying such prayer, the trial Court has committed illegality. . Considering the fact that the case has been fixed for final arguments tomorrow i.e. 30—8-2011 and the respondent herein has denied to receive Dasti service, further adjournment of the instant case for service to the respondent herein or observance of process will be a futile exercise and will again cause delay in trial of the suit. 10.Consequently, the petition is allowed. Order impugned dated 25-2-2011 passed by the Civil Judge Class-l, Pendra Road in Civil Suit No.153A/2005 relating to denial of taking evidence on affidavit of witnesses J.K. Agrawai & Mukesh Bagaria, is hereby quashed. Affidavits of J.K. Agrawal & Mukesh Bagaria be taken on record. The trial Court shall provide opportunity for further examination and cross-examination of J.K. Agrawal & Mukesh Bagaria to the parties and decide the case afresh. No order as to costs. 11.l.A.No.1 stands disposed of. 12. Certified copy today. Sd/- T. P. Sharma Judge