Madhya Pradesh High Court
Smt. Gulab Kali vs Smt. Muniya on 5 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.P.No.2340/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 5th OF FEBRUARY, 2024
MISC. PETITION No. 2340 of 2022
BETWEEN:-
1. SMT. GULAB KALI W/O MUDRIKA
PRASAD TIWARI, AGED ABOUT 63
YEARS, OCCUPATION: HOUSE WIFE R/O
VILLAGE BAKCHHERA TEHSIL
RAIPURKARCHULIYAN DIST. REWA
(MADHYA PRADESH)
2. SMT. SANGEETA DEVI D/O MUDRIKA
PRASAD TIWARI W/O RAJESH KUMAR
DWIVEDI, AGED ABOUT 38 YEARS,
OCCUPATION: HOUSEWIFE R/O
VILLAGE BAKCHHERA, TEHSIK
RAIPURKARCHULIYAN AT PRESENT
VILLAGE KONI, POST KONI, GADEHRA,
TEHSIL JAWA, DISTRICT REWA
(MADHYA PRADESH)
3. SMT. REKHA DEVI D/O MUDRIKA
PRASAD TIWARI W/O SHRIKANT
MISHRA, AGED ABOUT 35 YEARS, R/O
VILLAGE BAKCHHERA, TEHSIK
RAIPURKARCHULIYAN AT PRESENT
VILLAGE KACHNAR, POST AND TEHSIL
HANUMANA, DISTRICT REWA (MADHYA
PRADESH)
4. SMT. NISHA DEVI D/O MUDRIKA PRASAD
TIWARI W/O ANTU MISHRA, AGED
ABOUT 32 YEARS, R/O VILLAGE
BAKCHHERA, TEHSIK
RAIPURKARCHULIYAN AT PRESENT
VILLAGE KACHNAR, POST AND TEHSIL
HANUMANA, DISTRICT REWA (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI ARVIND KUMAR TIWARI - ADVOCATE)
AND
2 M.P.No.2340/2022
1. SMT. MUNIYA D/O YADUNANDAN
PRASAD TIWARI R/O VILLAGE
BAKCHERA TEHSIL
RAIPURKARCHULIYAN (MADHYA
PRADESH)
2. STATE OF M.P. THROUGH THE
COLLECTOR, REWA DISTRICT REWA
(M.P.) (MADHYA PRADESH)
3. SMT. RAJNI @ RAJVATI W/O SALIGRAM
MISHRA D/O YAGYA NARAYAN TIWARI,
AGED ABOUT 65 YEARS, R/O VILLAGE
BHAGO, TEHSIL MAUGANJ, DISTRICT
REWA (MADHYA PRADESH)
4. SMT. SUKHAUA @ SUKHRAJU W/O
DINESH MISHRA D/O YAGYA NARAYAN,
AGED ABOUT 63 YEARS, R/O MAHUATA,
TEHSIL MAUGANJ, DISTRICT REWA
(MADHYA PRADESH)
5. SMT. RAJUA @ RAJWATI W/O KAMTA
PRASAD MISHRA D/O YAGYANARAYAN,
AGED ABOUT 50 YEARS, R/O VILLAGE
BADRAV, TEHSIL SIRMOUR, DISTRICT
REWA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI VINOD KUMAR DUBEY - ADVOCATE FOR RESPONDENT NO.1 )
...................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
This misc. petition under Article 227 of Constitution of India
has been filed against the order dated 10.03.2022 passed by Seventh
Civil Judge, Junior Division, District Rewa in Civil Suit No.53-
A/2009 by which an application filed by petitioners under Order 18
Rule 3 and Rule 17 read with Section 151 CPC has been rejected.
2. It is submitted by counsel for petitioners that Muniya
Bai/respondent no.1 is the main contesting defendant no.1. She is
contesting the suit through her power of attorney holder namely;
Sheshmani. Smt. Muniya Bai has already filed her affidavit under
Order 18 Rule 4 CPC but now she is not turning up for her cross-
examination and accordingly the petitioners moved an application
for a direction to keep respondent no.1/Muniya Bai present before
the Court for cross-examination. However, the said application has
been dismissed on the ground that the power of attorney holder of
Smt.Muniya Bai has already been examined and certain documents
have been exhibited without any objection by the counsel for
plaintiffs and it has also been observed that since Smt.Muniya Bai is
aged about 96 years, therefore, it would be inconvenient for the
parties to keep her present before the Court.
3. Challenging the order passed by Court below, it is submitted
by counsel for petitioners that in the light of judgment passed by the
Supreme Court in the case of S.Kesari Hanuman Goud Vs. Anjum
Jehan and others reported in (2013) 12 SCC 64, the power of
attorney holder can depose in respect of acts done by him in exercise
of power granted by virtue of power of attorney but cannot depose in
place of Principal. Whether the petitioners had raised any objection
at the time of cross-examination of Sheshmani (holder of power of
attorney) or not, would not amount to waiver of their right to
challenge the admissibility of the documents. The objection with
regard to mode of proof of document can be waived but the objection
with regard to admissibility of a document cannot be waived and,
therefore, the trial court has committed material illegality by holding
that since no objection was raised by the petitioners at the time of
recording of evidence of power of attorney/Sheshmani, therefore, the
cross-examination of defendant no.1/respondent no.1/Muniya Bai is
not convenient for the parties.
4. It is further submitted that in case if it was not convenient for
defendant no.1/Muniya Bai to appear before the Court, then she
could have filed an application for her cross-examination by a local
Commissioner, but even such an application was not filed.
5. It is further submitted that since the petitioners have never
refused to cross-examine Smt.Muniya Bai, therefore, it is in the
interest of Muniya Bai also to get herself examined because in case if
some untoward incident takes place, then even her affidavit which
has been filed under Order 18 Rule 4 CPC may not be read in her
favour.
6. Per contra, the petition is vehemently opposed by counsel for
respondent no.1. It is submitted by Shri Dubey that Muniya Bai was
taken to the Court on multiple occasions, but she was not cross-
examined by the petitioners.
7. Heard the learned counsel for the parties.
8. Although it is the stand of respondent no.1 that Muniya Bai
had gone to the Court on multiple occasions but she was not cross-
examined by the petitioners, however, this fact does not find place in
the findings recorded by the trial court. Although the respondent no.1
had raised a written objection to the application filed under Order 18
Rule 3 and 17 CPC but no ordersheets of the trial court have been
placed on record to show that on earlier occasions Muniya Bai had
ever appeared before the Court and her cross-examination was not
done by the petitioners on one pretext or the other.
9. Under these circumstances, this Court is of considered opinion
that the trial court should have allowed the application under Order
18 Rule 3 read with Rule 17 CPC for the simple reason that in case if
the cross-examination of Muniya Bai was never refused by the
petitioners/plaintiffs then in case of some untoward incident, the
defendants would suffer adverse consequences on account of non-
cross-examination of Muniya Bai, as her examination-in-chief
cannot be read.
10. Accordingly, the order dated 10.03.2022 passed by Seventh
Civil Judge, Junior Division, District Rewa in Civil Suit No.53-
A/2009 is hereby set aside.
11. The defendant no.1/Smt.Muniya Bai is directed to remain
present before the trial court on 16.02.2024 for her cross-
examination.
12. It is made clear that in case if the defendant no.1/Smt. Muniya
Bai fails to appear before the trial court, then she would suffer
adverse consequences for want of her cross-examination.
13. It is further directed that in case if the petitioners fails to cross-
examine on 16.02.2024, then no further opportunity shall be granted
to them and the petitioners would suffer the adverse consequences of
refusal to cross-examine Smt.Muniya Bai.
14. It is also directed that because of advanced age, if the
defendant no.1/Muniya Bai is not in a position to appear before the
Court, then on 16.02.2024 the defendant no.1 must file an
application for her cross-examination by a local Commissioner. The
application must be supported by the medical documents.
15. If such an application is filed, then the trial court shall decide
the application on the very same day. If the trial court comes to a
conclusion that the defendant no.1/Smt.Muniya Bai must be
examined through local Commissioner, then not only the local
Commissioner shall be appointed on the very same day but any date
within a period of 7 days should be fixed for her cross-examination
by the local Commissioner.
16. With aforesaid observation, the petition is finally disposed of.
(G.S.AHLUWALIA)
JUDGE
TG/-
TRUPTI GUNJAL
2024.02.08
12:03:07 +05'30'
