Vijaysingh Gordhandas And Ors. vs Dwarkadas Mulji
2001 Latest Caselaw 553 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition, under Article 227 of Constitution of India, takes exception to the order passed by the Small Causes Court, Bombay dated 21st November, 1995 in Interim Notice No. 659 of 1995 in L.E. Suit No. 147/195 of 1979.

2. The above-said suit has been filed by the petitioners for possession of the suit property against the respondent-licensee on the ground that the subject license has been revoked. In the said suit an application was preferred on behalf of the petitioners-plaintiffs praying that Vijaysingh Gordhandas-plaintiff No. 1 be allowed to give evidence after the evidence of their witnesses P.W. 1 and P.W. 2 was already recorded. This application was filed in terms of the provisions under Order 18, Rule 3-A of Civil Procedure Code. The Court below has, however, rejected the said application on the ground that the plaintiff witness P.W. 1-Mr. Shreenarayana Shivmangal Mishra has already been examined in his capacity as Constituted Attorney of the plaintiffs and therefore it was not open to the plaintiffs to give evidence thereafter. This order is the subject matter of challenge in the present writ petition.

3. The learned Counsel for the petitioners submits that the Court below has clearly misdirected itself in rejecting the application. According to him, the purport of Order 18, Rule 3-A would, on the contrary, enable the Court to grant such permission in appropriate cases depending on the facts and circumstances of the case. He further submits that the Court below has clearly over looked the crucial fact that P.W. 1 S.S. Mishra has been examined in his capacity as Constituted Attorney of Vijayasingh Gordhandas-plaintiff No. 1 and not on behalf of the trust the plaintiffs. He submits that the plaintiffs are only trustees of a public trust and have filed the subject suit for and on behalf of the trust. In that sense, it is submitted that, the evidence of P.W. 1 in his capacity as constituted Attorney of Vijaysingh Gordhandas will have to be treated as in his personal capacity and cannot be of any avail to the Trust. To buttress this submission he relies on the cross-examination of P.W. 1 where this witness has categorically stated that he was deposing only as the Power of Attorney of Vijaysingh Gordhandas. The learned Counsel for the petitioners submits that, the plaintiffs, being trustees of the public trust, in law, were not entitled to delegate their powers that of trustees but could only delegate their ministerial act and in that view of the matter it is not possible to comprehend that the plaintiff No. 1 could have given his power as a trustee in favour of any other person to depose on his behalf in his capacity as trustee. He further submits that having regard to the totality of the circumstances and particularly the cause shown in the subject application that the plaintiff No. 1 wants to examine himself to establish the fact that the property in question was let out by him personally to the respondent-defendant, no other person will have authority to depose in his behalf. In the circumstances, he submits that the entire approach of the Court below is unsustainable-both on facts and in law.

4. Although the respondent has been served none appears to espouse the cause of the respondent.

5. Before I deal with the abovesaid submission, it would be opposite to reproduce the provisions of Order XVIII, Rule 3-A, which read thus :---

"XVIII- Hearing of the suit and examination of witnesses:

3-A Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage."

6. Ordinarily, the rule is that the plaintiff has to first enter the witness box before he would examine any other witness as his witness. However, Rule 3-A is an exception to that Rule. On plain language of the aforesaid provisions it would appear that permitting examination of the plaintiff, after he has already examined other witness as his witness, is not entirely prohibited. However, it is entirely the discretion of the Court to permit the plaintiff to enter the witness box at a subsequent point of time, provided, however, the Court is satisfied that there exists sufficient ground for taking such a course of action, and that the reasons so weighed with the Court will have to be recorded in the order permitting such a prayer.

7. In the present case, although the petitioners had applied for the relief in terms of the said provisions the Court below has merely observed that P.W. 1 has already been examined as the Constituted Attorney of the plaintiffs and therefore the application cannot be entertained. In my view, the approach of the Court below is wholly in-opposite having regard to the fact situation of the present case. As observed above, the record would indicate that the Power of Attorney executed by the plaintiff No. 1 in favour of Shreenarayan S. Mishra (P.W. 1) was in his personal capacity and not as the trustee of the trust. In that sense, such a Power of Attorney would be of no avail to authorize that person to depose on behalf of the trust, albeit his evidence cannot bind the trust. As rightly submitted by Mr. Abhyankar, the law would not permit the trustee to delegate his powers, which would include duty to depose on behalf of the trust in the proceedings for and against the trust. If such delegation is not permissible in law, the Power of Attorney executed in favour of Shreenarayan S. Mishra is of no avail.

8. On the other hand, the application filed before the Court below clearly indicates that the permission for examining the plaintiff No. 1 as a witness after the other witnesses were already examined was made only for the limited purpose indicated in paras 4 and 5 of the application. It is relevant to note that the subject application clearly asserts the circumstances due to which the plaintiff No. 1 could not give evidence before P.W. 1 was examined on behalf of the plaintiffs. The application asserts that at the relevant time the plaintiff No. 1 was out of Bombay and after his return he was indisposed and could not travel which eventually prevented him from attending the Court proceedings. There is nothing on record to doubt the correctness of this assertion. Since the subject application clearly mentioned the circumstances and gave cogent justification for permitting the plaintiffs to examine plaintiff No. 1 as their witness, after other witnesses were already examined, the Court below ought to have considered the efficacy of those circumstances. This aspect of the matter has been clearly glossed over by the Court below for which reason the order under appeal cannot be sustained. I am of the view that the petitioners have shown sufficient reasons not only with regard to the inability of the plaintiff No. 1 to enter the witness box, before other witnesses were examined, but also giving justification for the necessity to examine plaintiff No. 1 on the matters relevant for the full, complete and effectual adjudication of the matter and on which the other two witnesses could not have been examined. The petitioners have asserted that on the matters relating to the factum of inducting the respondent, creating license, issuing suit notice, revoking licence and calling upon the respondent to vacate-could be deposed only by the plaintiff No. 1 who had personal knowledge as he was looking after the affairs of the trust since beginning.

9. In the circumstances the order impugned in this writ petition deserves to be set aside and the application being Interim Notice No. 659 of 1995 in L.E. Suit No. 147/195 of 1979 will have to be allowed; and as a consequence of this order, the petitioners would be entitled to examine plaintiff No. 1 as witness on behalf of the trust.

Rule made absolute with no order as to costs.