Shri Girdharilal Gupta vs Smt. Pushpa Singh Tomar
2024 Latest Caselaw 3233 MP

Madhya Pradesh High Court

Shri Girdharilal Gupta vs Smt. Pushpa Singh Tomar on 5 February, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                            1                 M.P. No.2013/2023


IN THE HIGH COURT OF MADHYA PRADESH
            A T JA B A L P U R
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 5th OF FEBRUARY, 2024
         MISCELLANEOU PETITION No. 2013 of 2023
BETWEEN:-
SHRI    GIRDHARILAL   GUPTA    S/O   SHRI
PHOOLCHAND GUPTA, AGED ABOUT 58 YEARS,
OCCUPATION:    BUSINESS  R/O   RAMLEELA
MAIDAN, TAHSIL AND DISTRICT BANDA (U.P.)
THROUGH ITS POWER OF ATTORNEY HOLDER
SHRI RAJENDRA SINGH S/O LATE SHRI SARDAR
BUTA SINGH AGED ABOUT 65 YEARS R/O FLAT
NO. 1 SAKSHAM HEIGHTS BIRLA ROAD SATNA
M.P. (UTTAR PRADESH)

                                               .....PETITIONER
(BY SHRI RAJESH MAINDIRETTA AND MS. UDITA MAINDIRETTA -
ADVOCATES )

AND
1.   SMT. PUSHPA SINGH TOMAR W/O LATE
     SHRI    BALVEER    SINGH   TOMAR
     OCCUPATION: HOUSE WIFE R/O NEAR
     SEMARIYA CHOWK, KULGAWA, TEHSIL
     RAGHURAJNAGAR     DISTRICT  SATNA
     (MADHYA PRADESH)

2.   STATE OF MADHYA PRADESH, THROUGH
     COLLECTOR, SATNA DISTRICT SATNA
     (MADHYA PRADESH)

3.   MANGLAESHWAR     SINGH   S/O   SHRI
     SAMRESH SINGH, AGED ABOUT 55 YEARS,
     R/O PREM VIHAR COLONY, TEHSIL
     RAGHURAJ NAGAR, DISTRICT SATNA
     (MADHYA PRADESH)

4.   ANIL KUMAR TAMRAKAR S/O PANCHAM
     LAL TAMRAKAR, AGED ABOUT 42 YEARS,
     R/O CHANNAKAYA PURI COLONY, TEHSIL
     RAGHURAJ NAGAR DISTRICT SATNA
     (MADHYA PRADESH)

                                             .....RESPONDENTS
                                     2                    M.P. No.2013/2023


(SHRI GAJENDRA PARASHAR - PANEL LAWYER FOR RESPONDENT
NO.2/STATE, SHRI AKHILESH KUMAR JAIN - ADVOCATE FOR
RESPONDENT NO.4.)
.........................................................................................................
"Reserved on        :       08.01.2024"
"Pronounced on      :       05.02.2024"
      This petition having been heard and reserved for judgment, coming
on for pronouncement this day, the court passed the following:

                                  ORDER

This Petition under Article 227 of Constitution of India has been filed against order dated 23.03.2023 passed by IX Civil Judge, Junior Division, Satna (M.P.) in RCSA No.154/2014 by which an application filed by petitioner for his examination as a witness has been rejected.

2. It is submitted by counsel for petitioner that earlier, the trial Court had directed the petitioner to keep his witness, namely; Shri M.M. Kakkad present before the trial Court for his examination with a rider that in case, if Shri M.M. Kakkad remains absent, then right of petitioner to examine him shall be closed and matter was fixed for 23.03.2023. On 23.03.2023, witness of petitioner Shri M.M. Kakkad did not appear and accordingly, right of petitioner to examine him was closed. It is submitted by counsel for petitioner that petitioner is not aggrieved by the closer of right to examine Shri M.M. Kakad but petitioner is aggrieved by the rejection of an application, I.A. No.6/2023, by which permission was sought to examine Girdharilal/defendant No.1. It is the case of petitioner that defendant No.1 had appointed Rajendra Singh as his Power of Attorney and even written statement was filed, through his Power of Attorney. However, defendant No.1 is a party to the sale deed as purchaser and the

transaction took place with defendant No.1 and accordingly, to prove the sale deed, recording of evidence of defendant No.1 Girdharilal is essential and thus, it was prayed that defendant No.1 Girdharilal may be permitted to be examined. The said application was objected by plaintiff on the ground that Girdharilal should have examined himself as witness but in his place, he had examined Power of Attorney holder and Jafar Khan. As per the law, the litigating party must examine himself and now defendant No.1 in order to overcome the lapses, which have figured during cross examination of witnesses, has filed the present application. The trial Court has rejected the application on the ground that as per the provisions of Order 18 Rule 2 (1) of CPC, it is required that first of all the parties to the suit must get themselves examined and if he wants to examine any witness ahead of him, then he has to seek permission from the Court. In the present case, defendant No.1 instead of examining himself had got his witnesses, namely Rajendra Singh and Jafar Khan examined and now he wants to appear as a witness and accordingly, in the light of Order 18 Rule 2(1) of CPC, permission cannot be granted.

3. Heard the learned counsel for parties.

4. A Coordinate Bench of this Court in the case of Saphi Mohammad Vs. Ram Jiyawan and Others reported 2000 (4) MPHT 454 has held as under :

"4. To appreciate the rival submissions raised at the Bar it is apposite to refer to Order 18 Rule 3- A of the Code. It reads as under:

"Order XVIII. Hearing of the suit and examination of witnesses.- Rule 3-A. Party to appear before other witnesses.- 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."

On a bare reading of the aforesaid provision it is crystal clear that the certain duty is cast on the Court to record reasons for permitting a party to appear as its own witness at later stage. In the case at hand it is quite apparent that no reasons have been recorded. The heart of the matter is whether the Court can grant permission to the defendant at a later stage. The submission of Mr. Sharma is that the provision is mandatory is not acceptable as it is well settled in law that the aforesaid provision is a directory one and discretion is vested with the Court to permit examination of the party at a later stage after examination of the other witnesses. The aforesaid rule envisages that a party can examine himself at a later stage by leave of the Court. In this context, I may profitably refer to a decision rendered in the case of Maguni Dei Vs. Gouranga Sahu, AIR 1978 Orissa 228, wherein the Division Bench expressed thus:

"Having given our careful consideration to all the contentions put forward by counsel for the parties, we are clearly of the view that Order 18 Rule 3-A is of directory nature. In proper cases the Court has got power to examine a party at a later stage even though he has not obtained the Court's previous permission as provided in the rule. If a party has acted in good faith and it is just and fair to permit him to examine himself at a later stage, the Court is not absolutely helpless in the matter."

5. The same view was followed in the case of Khadi Kissan Vs. Thurba Kissan and another, AIR 1988 Orissa 55. This Court in the case of

Ramchandra Vs. Bhagwandas, 1993 (1) MPWN 46, has held that allowing a party to appear as a witness after examination of his other witnesses is within the discretion of the Court.

6. Thus it is quite clear that with the leave of the Court the party can examine himself at a later stage. It is apparent that the rule does not stipulate any stage where the permission is to be granted. In the case at hand admittedly no permission was granted. The Court below has fallen into error by observing that oral permission was granted. Be that as it may, that cannot be the reason to foreclose the evidence of defendant No. 2. It is worth noting here that in the meantime defendant No. 2 has expired.

Therefore, if the legal heirs desire to examine themselves, they may file an application for grant of leave to examine themselves and, the trial Court would exercise its discretion and pass appropriate orders. Such an action would be in consonance with the provisions of the Code."

5. Thus, it is clear that provisions of Order 18 Rule 3(A) of CPC are directory and not mandatory. If the reasons assigned by the trial Court are considered, then it is clear that application has been rejected only on the ground that provisions of Order 18 Rule 2 and 3(A) of CPC are mandatory in nature.

6. Accordingly, this Court is of considered opinion that since provisions of Order 18 Rule 3(A) of CPC are not mandatory in nature and they are directory in nature and the Court can always grant permission to examine a party after examination of his witnesses, therefore, it was necessary for the trial Court to assign the reasons for rejecting such prayer.

7. Accordingly, order dated 23.03.2023 passed by IX Civil Judge, Junior Division, Satna (M.P.) in RCSA No.154/2014 is hereby set aside.

The matter is remanded back to the trial Court to decide I.A. No.6/2023 afresh by keeping the law laid down by a Coordinate Bench of this Court in the case of Saphi Mohammad (supra) in mind and then shall decided as to whether permission can be or cannot be given to defendant No.1 to examine himself as a witness.

8. Let the entire exercise be completed latest by 29.02.2024.

9. It is made clear that while deciding the application, trial Court shall not get swayed away by impugned order dated 23.03.2023.

10. With aforesaid observation, petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE SR*

Date: 2024.02.05 14:37:09 +05'30'