S.B.Civil Writ Pet. No.2610/07 Mangi Lal v. Shashi Prabha Choudhary & ors. and connected appeal No.2611/07 1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. ORDER. (1) S.B. Civil Writ Petition No. 2610/07 Mangi Lal vs. Shashi Prabha Choudhary & ors. (2) S.B. Civil Writ Petition No. 2611/07 Mangi Lal vs. Shashi Prabha Choudhary & ors. Under Article 226 and 227 of the Constitution of India. Date of Order : 15.1.2009 PRESENT HON'BLE MR.JUSTICE PRAKASH TATIA Mr.Manish Shishodia for the petitioners Mr. DK Parihar for the respondent no.1 ... These writ petitions have been preferred with facts that affidavit of the plaintiff PW-1 Shashi Prabha Choudhary was put out of record by the trial court's order dated 18.11.2005, was ordered to be read in evidence by ignoring earlier order of the trial court itself. It is submitted that that was done when the plaintiff's witnesses did not appear and the defendant submitted before the trial court that the plaintiff's evidence may be closed. Instead of doing so, the trial court ordered S.B.Civil Writ Pet. No.2610/07 Mangi Lal v. Shashi Prabha Choudhary & ors. and connected appeal No.2611/07 2 that the plaintiff's witnesses' statements in the form of affidavit of PW-1 Shashi Prabha, PW-2 Amrit Lal, PW-3 Kishan Kant and PW-4 Bhanwar Singh will be read in evidence. The trial court by this order dated 24.11.2006 also closed the right of the defendant to cross-examine the witnesses of the plaintiff on the ground that the prayer for cross- examination was not made by the petitioner-defendant in last 2-1/2 years. And further by same order, on the day which was fixed for the evidence of plaintiff, the defendant's evidence was closed. According to the learned counsel for the petitioner, the suit was fixed for evidence of the plaintiff and the plaintiff's witnesses were not present, therefore, they could not have been cross-examined. The cross- examination of the plaintiff's witnesses could have been closed to render their evidence of no use but the defendant's right to cross- examine plaintiff and her witnesses could not have been closed. Further more, on the day when the case was fixed for plaintiff's evidence, the defendant's evidence was also closed. In view of the above, the learned Rent Tribunal committed serious error of law by ignoring its order dated 18.11.2005 and also committed serious error of law by passing the order dated 24.11.2006 closing the petitioner's opportunity to cross-examine the plaintiff's witnesses and closing the evidence of the defendant on the day when the case was fixed for evidence of the plaintiff. S.B.Civil Writ Pet. No.2610/07 Mangi Lal v. Shashi Prabha Choudhary & ors. and connected appeal No.2611/07 3 I considered the submissions of the learned counsel for the parties and perused the relevant order-sheets which have been placed on record. In the order dated 18.11.2005, the trial court has already ordered to put out of record the affidavit of PW-1 Shashi Prabha and that order has not been reviewed or set aside. Contrary to it and without mentioning any reason, the trial court vide order dated 24.11.2006 has ordered that the affidavit of PW-1 Shashi Prabha will be read in evidence. Therefore, the order dated 24.11.2006 admitting the affidavit of PW-1 Shashi Prabha in evidence is contrary to trial court's own order and, therefore, cannot be sustained. The case was fixed for evidence of the plaintiff and which is apparent from the order dated 8.9.2006 that no witness of the plaintiff was present and the case was adjourned on payment of Rs.100/- and on 24.11.2006 also none of the witness of the plaintiff was present. Giving of opportunity to cross-examine the witness of the plaintiff, by the tribunal is normal practice to comply with the principles of natural justice and, therefore, the learned tribunal committed error of law by denying the cross-examination of plaintiff's witnesses and closing the evidence of the defendant on the day when the case was fixed for evidence of the plaintiff is also wholly without jurisdiction. S.B.Civil Writ Pet. No.2610/07 Mangi Lal v. Shashi Prabha Choudhary & ors. and connected appeal No.2611/07 4 In view of the above reason, both the writ petitions are allowed and it is ordered that the affidavit of PW-1 Shashi Prabha will not be read in evidence unless so is ordered by the trial court while deciding the application filed by the plaintiff's power of attorney which has been kept pending for decision at the time of final argument vide order dated 7.8.06. The trial court shall give opportunity to cross-examine the plaintiff's witnesses and to submit affidavit of the defendant and defendant's witnesses thereafter. The trial court may proceed expeditiously to decide the suit. (PRAKASH TATIA)J mlt.