Madhya Pradesh High Court
Shilendra Sinhal vs Union Of India on 21 February, 2025
Author: Pranay Verma
Bench: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 21 st OF FEBRUARY, 2025
MISC. PETITION No. 150 of 2025
SHILENDRA SINHAL
Versus
UNION OF INDIA AND OTHERS
Appearance:
Shri Mohan Sharma - Advocate for the petitioner.
Shri Himanshu Joshi - Advocate for respondent No.1.
Shri Sudarshan Joshi - Government Advocate for respondent No.2/ State.
ORDER
With consent of learned counsel for the parties, the matter is finally heard.
This petition under Article 227of the Constitution of India has been
preferred by plaintiff No.5/petitioner being aggrieved by the order dated
10.12.2024 passed by the trial Courtwherebyhis application under Order 18 Rule
17 of the CPC has been rejected. Plaintiff No.5 has also challenged the order dated
20.12.2024 passed by the trial Court whereby his application for review of order
dated 10.12.2024 has been rejected.
02. The original plaintiffs had instituted an action for declaration of title and
permanent injunction over land and bungalow No.74 situated at Mall Road,
Mhow. The claim was contested by the defendants by filing written statement to
the same. By judgment and decree dated 03.05.2005, the trial Court dismissed the
claim. Being aggrieved by the said judgment and decree, plaintiffs preferred an
appeal under Section 96 of the Code of Civil Procedure before the Appellate
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Court. By order dated 12.02.2009, the Appellate Court set aside the judgment and
decree passed by the trial Court and remanded the matter back to it for decision
afresh. The same was for the fact that in the appeal an application under Order 1
Rule 10 of the CPC was filed by plaintiff No.5 for being impleaded as a party.
The said application was allowed consequent to which the remand was directed.
In the remand order, it was directed that after impleadment of plaintiff No.5 as a
party to the suit, he be afforded due opportunity of hearing and on the basis of his
averments issues be reframed and the parties be afforded opportunity to lead
evidence and the suit be decided afresh on merits.
03. After remand of the case to it by the Appellate Court, plaintiff No.5 was
added as a party to the suit and he led his evidence and was cross-examined by
defendants. The case was then fixed for evidence of defendants. However,
defendants declared that they do not wish to lead any further evidence and their
evidence was closed.
04. Thereafter, plaintiff No.5 filed an application under Order 18 Rule 17 of
the CPC for recalling witness Vijay Rajak son of Suresh Rajak for the purpose of
his cross-examination submitting that he has earlier been examined on part of the
defendants and that since plaintiff No.5 has been impleaded subsequently, he
deserves to be granted opportunity to cross-examine him. The application was
opposed by defendant No.1 and has been rejected by the trial Court by the
impugned order dated 10.12.2024 by observing that upon remand, on the basis of
pleadings, issues have been reframed and evidence has been led and defendants
have closed their evidence. The plaintiffs have already cross-examined DW/1
Vijay Rajak in detail and no new circumstances have been pointed out by
plaintiffs for permitting them to recall the said witness. Plaintiff No.5 thereafter
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filed an application for review of the said order, which has also been rejected by
the impugned order dated 20.12.2024.
05. I have considered the submissions of the learned counsel for the parties
and have perused the record.
06. While it is true that earlier the plaintiffs had cross-examined the witness
Vijay Rajak in detail. However, the same was prior to impleadment of plaintiff
No.5 as a party to the suit. In the first appeal, he was directed to be impleaded as a
party and was directed to be afforded due opportunity of hearing in the matter and
to lead his own evidence. Affording of due opportunity of hearing would comprise
within itself right to lead evidence on his own part and to cross-examine the
witnesses of the other side, which would include not only the witnesses to be
examined by the defendants after remand, but also prior to remand. To contend
that plaintiff No.5 would have the opportunity to adduce evidence but would not
have the right to cross-examine the witness already examined earlier would not be
proper interpretation of the remand order. Affording of opportunity would mean
opportunity in all aspects of the matter. Plaintiff No.5 was not a party to the suit
earlier. He has been impleaded in appeal. The evidence of witness Vijay Rajak
was recorded in his absence and if the same is to be used against him, then it is
imperative for him to be afforded an opportunity to cross-examine him.
07. Though it has been contended by the learned counsel for defendant
No.1 that plaintiff No.5 is a subsequent purchaser of the suit property with notice
which fact has been recorded in the sale deed itself executed in his favor, hence he
is bound by the decree to be passed against plaintiffs No.1 to 4 and cannot claim
any independent right, but this argument pales into insignificance in view of the
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terms of the remand order. Though plaintiff No.5 is a purchaser pendente lite with
knowledge of the litigation but in the remand order, he was specifically afforded
opportunity of hearing and for adducing evidence. As stated, adducing evidence
would be leading his own evidence, cross-examining the defendants' witnesses
and any witness which had been examined earlier prior to his impleadment.
08. Thus, in view of the aforesaid discussion, plaintiff No.5 has a right to
recall witness Vijay Rajak, who had been examined prior to his impleadment in
the suit. The application filed by him ought to have been allowed by the trial
Court, which has erred in rejecting the same. Consequently, the impugned orders
dated 10.12.2014 (Annexure P/1) and 20.12.2024 (Annexure P/2) passed by the
trial Court are hereby set aside and the application under Order 18 Rule 17 of the
CPC preferred by plaintiff No.5 stands allowed.
09. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
Shilpa
