1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.7392/07 Smt. Manju vs. Civil Judge (JD), Jhunjhunu & Ors. Date of order : 21/2/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajkamal Gaur for the petitioner. Shri Rajat Ranjan for the respondent. ****** Heard learned counsel for the parties. The writ petition has been filed against the order dated 27.8.2007 passed by the Court of Civil Judge (Junior Division), Jhunjhunu in the eviction suit filed by respondent no.2 to 9. The learned trial court by aforesaid order rejected the application of the petitioner filed under Order 18 Rule 17 CPC whereby the petitioner requested for recalling a witness Vinod Kumar S/o Shankar Lal. The case of the petitioner is that as the receipt were obtained by her in a duly maintained diary earlier from Shankar Lal and after his death his son Vinod Kumar, the original of the diary was produced in 2 another Civil Suit No.45/99 pending in the same Court. On application of the defendant- petitioner filed under Order 9 Rule 1 CPC, the trial court vide order dated 18.8.2007 allowed copy of that diary to be brought on record. In order therefore to cross examine the receipts of rent entered in the said diary, the recall of Vinod Kumar is necessary. Learned counsel for the petitioner has argued that when the trial court has permitted the copy of the diary to be brought on record in the present case and when the original diary was filed in the same Court though in another suit, the recall of the said witness Vinod Kumar is essential and would be necessary for effectively deciding the controversy involved in the suit because one of the grounds on which the eviction of the petitioner is sought is default in payment of rent. It is argued that the witness may be recalled on any one single day that may be fixed by the Court and the petitioner would be put to him only few questions 3 about the receipts contained in the diary. This is not going to in any manner delay the proceedings. Learned counsel for the respondent however opposed the writ petition and submitted that the application one after the other are being filed by the petitioner in order to delay the proceedings. The application under Order 9 Rule 1 CPC was also at the final stage. Evidence of the defendant has been recorded and now this application has been filed under Order 18 Rule 17 CPC when the matter is ripped for final disposal. It is submitted that the case of the petitioner has not been found to be proved even when another suit on the basis of so called diary was filed. Having heard learned counsel for the parties, I find that the fact that original of the diary was produced in another suit and its copy has already brought on record by recourse to application under Order 9 Rule 1 CPC is not in dispute. It is also not dispute that one of the ground for eviction of the defendant-petitioner is default in 4 the payment of rent. The contents of the diary in this manner of the matter assumes significance. Though Shankar Lal with respect to whom it is stated that he made the earlier entries of receipts is no longer available but his son Vinod Kumar who made subsequent entries would examine as a witness of the plaintiff-respondent. Recalling him for the purpose of cross- examination as to the receipts contained in the diary would be necessary, more particularly when such diary has been allowed to be brought on record. In the facts of the case, therefore, it would be just and reasonable to permit recall of Vinod Kumar for the purpose of his cross examination on the entries contained in the diary. The impugned order dated 27.8.2007 is therefore set aside and it is directed that the plaintiff-respondent Vinod Kumar. Plaintiff-respondent Vinod Kumar should make himself available before the trial court on any date that may be fixed by the Court within a fortnight from the date certified copy of this order is produced 5 before it for the purpose of cross examination which shall concluded on the same date. The writ petition is accordingly allowed. (MOHAMMAD RAFIQ), J. RS/