Meenabai Khemchand ... vs Shri. Bhimrao Raghoba Jagtap And ...
2016 Latest Caselaw 6132 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                            NAGPUR BENCH, NAGPUR.




                                                           
                              WRIT PETITION NO.4053 OF 2015


    Meenabai Khemchand Pugaliya (Marwadi) 
    since deceased through her legal representatives : 




                                                          
    1.  Ramesh Rekhchandji Pugaliya
         aged about 62 years, Occ. Business, 
         resident of Gandhi Chowk, 




                                                
         Chandrapur, Tq. & Dist. Chandrapur. 

    2.  Rajendra Tilokchand Kothari
                                      
        aged about 61 years, Occ. Business 
        resident of Kotwali Ward, 
                                     
        Chandrapur, Tq. & Dist. Chandrapur.  

    3.  Praveen Tilokchand Kothari
        aged about 53 years, Occ. Business 
             

        resident of Kotwali Ward, 
        Chandrapur, Tq. & Dist. Chandrapur.                  ...Petitioners/Ori. Defts. 
          



    -vs-

    1.  Bhimrao Raghoba Jagtap,





         aged about 50 years, 
         Occ. Cultivation, 
         resident of Palgaon, 
         Tq. Korpana, Dist. Chandrapur. 





    2.  Anjanabai widow of Raghoba Jagtap
         aged about 80 years, 
         Occ. Cultivation, 
         resident of Palgaon, 
         Tq. Korpana, Dist. Chandrapur.               ... Respondents/Ori. Plffs. 


    Shri M. P. Khajanchi, Advocate for petitioners. 
    Shri S. Deo, Advocate for respondents. 




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                                                      CORAM  : A.S.CHANDURKAR, J. 

DATE : October 18, 2016

Oral Judgment :

Rule. Heard finally with consent of learned counsel for the

parties.

The petitioners who are the original defendants in R.C.S.

No.06/2007 are aggrieved by the order passed below Exhibit-176 by the trial

Court thereby rejecting the said application moved by the defendants for

examining defendant No.1 after the defendant No.2's witness was examined.

2. The respondents are the original plaintiffs who have filed suit for

declaration that they are the owners of the suit field along with other

ancillary reliefs. After the issues were framed, the plaintiffs examined five

witnesses and closed their side on 11/07/2013. Thereafter defendant No.2's

witness was examined and his evidence concluded on 17/01/2014.

Thereafter the defendant No.2 examined himself and his deposition was

completed on 11/12/2014. Thereafter the present application under

Exhibit-176 was moved by the defendant No.1 to seek permission to examine

himself as a witness. The application was opposed by the plaintiffs and by

the impugned order, the same was rejected.

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3. Shri M. P. Khajanchi, the learned counsel for the petitioners

submitted that the provisions of Order XVIII Rule 3-A of the Code of Civil

Procedure, 1908 (for short, the Code) were directory in nature and the trial

Court ought to have allowed the application moved by the defendant No.1 so

as to grant opportunity to the said defendant to lead evidence. He

submitted that in the said application the reason was stated that the

defendant's lawyer was of the view that defendant No.1 could be examined

subsequently and hence he was not initially examined. According to the

learned counsel, considering the nature of aforesaid provisions, the trial

Court ought to have allowed the application especially when the plaintiffs

had a right to cross-examine the said witness. In support of his submissions,

the learned counsel relied upon the following judgments :

i) 1979 Mh.L.J. 809 Nagorao Nilkanthrao Deshmukh and anr. v. Keshao Govind Patil.

ii) 2003(2) ALL MR 510 F.D.C. Ltd. v. Federation foMedical Representatives & Ors.

iii) 2009(2) Bom.C.R. 736 Shah Industries & anr. v. Vadhani Industrial Estate.

4. Shri S. Deo, the learned counsel for the respondents supported the

impugned order. According to him though the provisions of Order XVIII Rule

3-A of the Code were directory in nature, the petitioners had not assigned

any reason so as to permit examination of defendant No.1 at a subsequent

stage. He submitted that there was no sufficient reason mentioned in the

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application below Exhibit-176 for it to be granted and hence the trial Court

was justified in passing the impugned order.

5. I have heard the respective counsel for the parties and I have

given due consideration to their respective submissions. It is not in dispute

that the defendant No.2 and his witness were initially examined and

thereafter application below Exhibit-176 came to be moved seeking

permission to examine defendant No.1. In Nagorao Nilkanthrao

Deshmukh (supra) this Court has held that the provisions of Order XVIII

Rule 3-A of the Code are directory in nature and that it is not necessary for a

party to seek such permission before examining any witness. at the

inception of its evidence. In the application moved by the party, the trial

Court after considering the reasons, can permit such party to be examined.

In Shah Industries (supra) this view has been followed and it is observed

that it is desirable that full opportunity should be given to a party to the

proceedings to put the evidence on record. In F.D.C. Ltd. (supra) a party

to the suit leading evidence is described as a witness and the provisions of

said Rule has been construed in that manner.

6. In the application below Exhibit-176 it has been stated that it was

the view of the defendant's counsel that any defendant could be examined

first and therefore the defendant No.2 was initially examined. It is to be

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noted that provisions of Order XVIII Rule-3-A of the Code prescribe the

procedure about the sequence of leading evidence during the conduct of the

suit. In this matter, the party is guided by the advise received by the party

from its counsel. On reading of said application, it cannot be said that the

defendant No.1 could be blamed if defendant No.2 was examined prior to

defendant No.1. Moreover, the reasons assigned in the said application

cannot be termed to be either frivolous or totally unacceptable. There is

nothing on record to hold that filing of the aforesaid application was an

attempt to fill in the lacuna. Considering the procedural aspect of the

matter and the fact that the plaintiffs can cross-examine the concerned

witness, I find that a case for interference has been made out inasmuch as

failure to lead evidence of defendant No.1 would cause prejudice to the case

of the defendants. The error is therefore required to be corrected at this

stage itself.

7. In view of aforesaid, the following order is passed :

(i) The order dated 11/06/2015 passed below Exhibit-176 in

R.C.S.No.06/2010 is set aside.

(ii) The application below Exhibit-176 is allowed. It is open for the plaintiffs to cross-examine said witness in accordance with law. Rule is made absolute in aforesaid terms with no order as to costs.

JUDGE Asmita