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Nanak Chand Vs. Durga Pershad Brinja and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 93 of 1952
Judge
Reported inAIR1953P& H102
ActsCode of Civil Procedure (CPC) , 1908 - Order 18, Rule 2 and 2(2)
AppellantNanak Chand
RespondentDurga Pershad Brinja and ors.
Appellant Advocate H.S. Gujral, Adv.
Respondent Advocate H.L. Sibbal, Adv.
Cases ReferredHaji Bibi v. Sultan Mahomed
Excerpt:
.....orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against..........on 8-3-1952, counsel for defendant 1 stated that defendant 1 would examine evidence on the issues fixed on 6-3-1952. plaintiff maintained that defendant 1 had no right to examine evidence on the issues set out above. for arguments on the point the case was adjourned to 13-3-1952. 2. finding that defendant 1 had no right to lead evidence on the issues set out above, the court refused to allow defendant 1 to examine evidence on the issues. 3. from the order passed by the court of first instance on 13-3-1952, defendant 1 has come up in revision. 4. in arguments it is maintained that the court in passing the order under examination has acted in the exercise of its jurisdiction with material irregularity. 5. in these circumstances, the question for decision is whether defendant 1 has.....
Judgment:
ORDER

Harnam Singh, J.

1. On 6-3-1952, in Civil Suit No. 5 of 1951, the Court of first instance fixed the following issues:

'(7) Whether defendant 4 is a 'bona fide' purchaser for valuable consideration of the Daily 'Prabhat' If so, what is its effect on the suit Onus on defendant 4.

(8) Whether the suit is not properly valued for purposes of court-fee and jurisdiction Onus on defendant 4.

(9) Relief.'

On 6-3-1952, the case was adjourned to 8-3-1952. On 8-3-1952, counsel for defendant 1 stated that defendant 1 would examine evidence on the issues fixed on 6-3-1952. Plaintiff maintained that defendant 1 had no right to examine evidence on the issues set out above. For arguments on the point the case was adjourned to 13-3-1952.

2. Finding that defendant 1 had no right to lead evidence on the issues set out above, the Court refused to allow defendant 1 to examine evidence on the issues.

3. From the order passed by the Court of first instance on 13-3-1952, defendant 1 has come up in revision.

4. In arguments it is maintained that the Court in passing the order under examination has acted in the exercise of its jurisdiction with material irregularity.

5. In these circumstances, the question for decision is whether defendant 1 has a right to examine evidence on the issues fixed on 6-3-1952

6. Rule 2 of Order 18, Civil P. C., hereinafter referred to as the Code, provides:

'2 (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall settle his case and produce his evidence in support of the issue which he is bound to prove.

(2) 'The other party' shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.

(3) The party beginning may then replygenerally on the whole case.'

Rule 2 (1) of Order 18 of the Code correspondsto Section 179, and Rules (2) and 2 (3) of Order 18of the Code correspond to Section 180, Civil P. C.,1882. In -- 'In re Dukshina Mohun Roy,deceased', 29 Cal 32, Sale C. J. said:

'My view is this, that, where there are twosets of defendants and their interests arepractically the same, both should addressthe Court before any evidence is gone into.'

7. In -- 'Haji Bibi v. Sultan Mahomed', 32 Bom 599. Russel J. said:

'The plaintiffs and such of the defendants as support the plaintiff's case, wholly or in part, must address the Court and call 'their' evidence in the first place, and then following the words of Section 180, Civil P. C. the other party, namely the persons opposed to the plaintiff's case and that of the other defendants supporting the plaintiff, must address the Court and call their evidence.'

8. That being the procedure prescribed by the Code, I have no doubt that when an issue of fact arises between the plaintiff and one of the defendants the other defendants who support the defendant's case cannot be prevented from examining evidence on that issue.

9. For the foregoing reasons, I set aside the order passed by the Court of first instance on 13-3-1952, and order that after defendant 4 has examined his evidence the other defendants who may wish to examine evidence on the issues fixed on 6-3-1952, shall have a right to state their case and examine evidence. Plaintiff will examine evidence in rebuttal on the conclusion of the evidence by the defendants.

10. No order as to costs in these proceedings.

11. Before parting with this order I wish to state that the suit was instituted on 9-1-1951, and so far the examination of evidence has not been completed. In the circumstances, I express a hope that the Court of first instance will see that the suit is as expeditiously disposed of as possible.

12. Parties are directed to appear in the Court of first instance on 8-12-1952.


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