Chand Khan vs Jubeda
2022 Latest Caselaw 7399 Raj

(1 of 5) [CW-15475/2019]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 15475/2019

Chand Khan S/o Rehmat Khan, Aged About 75 Years, B/c Sindhi, R/o Sindhi Muslim, Basti Masuriya Extension Scheme, Baba Ramdev Road, Masuriya, Jodhpur.

----Petitioner Versus

1. Jubeda W/o Ameen Khan, .

2. Ugma W/o Ishaq Khan, Both are B/c Sindhi, R/o Plot No. 68, 69-B, Sindhi Muslim, Basti Masuriya Extension Scheme, Baba Ramdev Road, Masuriya, Jodhpur.

                                                                ----Respondents


For Petitioner(s)        :     Mr. Moti Singh
                               Mr. Jogendra Singh
For Respondent(s)        :     Mr.   RK Thanvi, Sr. Adv. assisted by
                               Mr.   Mahendra Thanvi
                               Mr.   Narendra Thanvi,
                               Mr.   Chandra Shekhar Sihag



        HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                     Order

18/05/2022

The case is listed in the 'order's category', however, with the

consent of learned counsel for the parties, the matter is being

heard and decided finally.

The present writ petition has been filed against the order

dated 30.08.2019 (Annex.6) passed by Senior Civil Judge No.5,

Jodhpur Metropolitan, Jodhpur, whereby learned trial court has

ordered the affidavit of PW.4 Isral Khan to be kept in Part D.

Learned counsel for the petitioner submits that petitioner is a

plaintiff and he has filed a suit for mandatory injunction, which is

pending consideration before the Court of Senior Civil Judge No. 5,

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Jodhpur Metropolitan, Jodhpur. During the course of suit

proceedings, the affidavits of the prosecution witnesses, namely,

PW1 Chand Khan, PW2 Zameel Khan, PW3 Subhan Khan and PW4

Isral Khan were filed. The impugned order dated 30.08.2019 has

been passed for keeping the affidavit of Isral Khan in Part-D of the

file on the ground that Isral Khan, being a plaintiff's witness, has

interjected and interrupted the three plaintiff's witnesses during

the course of their examinations before learned trial court.

Learned counsel for the petitioner further submits that such

allegations were levelled against the petitioner on earlier

occasions also and learned trial court has rejected the applications

filed by the respondents. He, therefore, submits that there is no

provision that the prosecution witnesses who are yet to be

examined before learned trial court cannot remain present during

the course of examination of other witnesses. Therefore, learned

trial court has committed an error while keeping the affidavit of

Isral Khan in Part-D of the file on the ground that he has

interjected and intervened at the time of recording of the

testimony of the other plaintiff's witnesses. Learned counsel

further submits that by keeping the affidavit of PW.4 Isral Khan in

Part D will seriously prejudice the case of the plaintiff and will

have adverse effect in the suit proceedings. He, therefore, prays

that the writ petition may kindly be allowed and the order dated

30.08.2019 (Annex.6) may be quashed and set aside.

Per contra, learned senior counsel for respondent No.1 while

opposing the arguments of learned counsel for the petitioner

submits that learned trial court has rightly observed that PW.4

Isral Khan was creating hindrances while recording the testimony

of PW1 Chand Khan, PW2 Zameel Khan, PW3 Subhan Khan before

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learned trial court and since Isral Khan was interjecting and

interfering with the plaintiff's witnesses while their testimony was

being recorded, therefore, learned trial court has rightly ordered

to keep the affidavit of PW4 Isral Khan in Part-D of the file. In this

view of the matter, learned senior counsel submits that in order to

maintain the discipline and decorum of learned trial court, no

interference in the impugned order is warranted.

While adopting the arguments of learned senior counsel, Mr.

Chandra Shekhar Sihag, learned counsel appearing for the

respondent No.4 submits that Isral Khan as well as counsel had

time and again created impediments in recording the evidence of

the plaintiff's witnesses and had not allowed learned trial court to

smoothly record the evidence in the case. He further submits that

the petitioner is unnecessarily lingering the case while enjoying

the interim order passed by this Court.

In support of their submissions, learned counsel for the

respondents relied upon the judgments passed by Andhra Pradesh

High Court and Kerala High Court in the cases of Achyutana

Pitchaiah Sarma vs. Gorantla Chinna Veerayya & Ors,

reported in AIR 1961 Andhra Pradesh 420 & Chacko

Varghese vs. Karthiyani & Ors, reported in (1987) KerLJ990.

I have considered the submissions made at the Bar and gone

through the pleadings including the impugned order placed on

record.

In the suit proceedings pending before learned trial court,

three witnesses have been examined namely, PW1 Chand Khan,

PW2 Zameel Khan, PW3 Subhan Khan and during the course of

recording the evidence of these three witnesses, Isral Khan was

also present. However, there is no concrete and cogent evidence

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on record to show that the presence of Isral Khan has created

impediments in recording the statements of other witnesses

before learned trial court. On a pointed query being raised to

learned counsel for the respondents, they were not in a position to

submit before this Court that any provision of law prohibits the

presence of a witness whose affidavit has been tendered in

evidence to refrain from attending the court proceedings, more

particularly, at the time of examination of other plaintiff's

witnesses. This court finds that neither there is any provision nor

there is any rule which prohibits the presence of a witness during

the course of examination of other plaintiff's evidence. Therefore,

this court is of the opinion that mere presence of a witness (who

has tendered his affidavit in evidence) during the course of

examination of other witnesses will not prejudice the case of the

respondents.

The judgments cited by learned counsel for the respondents

are not applicable in the present set of facts as mere presence of

Isral Khan before learned trial Court at the time of examination of

the other plaintiff's witnesses will not prejudice the case of the

respondents, more particularly when on earlier three occasions,

the applications so preferred by the respondents before learned

trial Court were considered and rejected.

It is also observed that if Isral Khan creates any

hurdle/impediment in the smooth functioning of the Court

proceedings, learned trial Court will take into account the conduct

of any person including Isral Khan and pass appropriate orders

debarring his presence in the Court premises.

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In view of the above discussions, the writ petition is allowed

and the order impugned dated 30.08.2019 (Annex.6) is quashed

and set aside.

However, learned trial Court is directed to get the PW.4 Isral

Khan examine before learned trial Court on the next date fixed.

It is also observed that suit proceedings are pending

consideration before learned trial Court for last 13 years,

therefore, learned trial Court is directed to expedite the trial

proceedings and complete the same at the earliest.

The stay application as well as other pending applications, if

any, shall stand disposed of.

(VINIT KUMAR MATHUR),J 152-SanjayS/KashishS/-

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