Rajasthan High Court - Jodhpur

Lrs Of Late Sh. Nirbhay Singh vs Smt. Chelna Devi ... on 29 August, 2023

Bench: Dinesh Mehta

[2023:RJ-JD:27340]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2714/2018

Legal Representatives Of Late Shri Nirbhay Singh S/o Shri Pushpendra Singh Chundawat-

----Petitioners Versus Smt. Chelna Devi W/o Amritlal Taya, Resident Of Ashok Nagar, Udaipur Raj..

                                                                 ----Respondent


For Petitioner(s)          :    Mr. Jhamak Nagda
For Respondent(s)          :    Mr. Deelip Kawadia



                      JUSTICE DINESH MEHTA

                                     Order

29/08/2023

1. The instant writ petition preferred under Article 227 of the

Constitution of India impugnes order dated 20.01.2018 passed by

the learned Senior Civil Judge No.1, Udaipur (hereinafter referred

to as 'the trial Court') whereby the petitioner's application dated

19.01.2018 under Order XIII Rule 1 of the Code of Civil Procedure

was dismissed.

2. The facts appertain are that the plaintiff-Nirbhay Singh

(being represented by his legal representatives) instituted a suit

for cancellation of sale deed. During the course of trial, the

petitioner moved an application dated 19.01.2018 and prayed that

an order passed by the Municipal Corporation be taken on record

and the plaintiff be permitted to confront Amritlal Taya (DW-1)

with the same.

3. The petitioner's application dated 19.01.2018, came to be

rejected by the trial Court inter-alia observing that DW-1 himself

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is a defendant and not a witness and therefore, the provisions of

Order XIII Rule 1 of the Code of Civil Procedure are not applicable.

While rejecting the said application, the trial Court relied upon the

judgment of this Court rendered in the case of Kirodi Lal Vs.

Chhitar Mal reported in AIR 14 Raj. 18.

4. Mr. Nagda, learned counsel for the petitioner argued that the

trial Court has erred in rejecting the petitioner's application on the

ground that the defendant DW-1 was not a witness. He read the

provisions of Order XIII Rule 1, CPC and argued that the term

'witness of the other party' cannot be construed in a restricted

sense so as to include only the witness, excluding the parties to

the suit. He added that a defendant or plaintiff when comes in the

witness box is also a witness, maybe for his own cause.

5. Learned counsel argued that the expression witness should

be given its natural meaning and as and when the plaintiff or the

defendant appears in the witness box for all practical purposes, he

should be treated to be a witness.

6. Mr. Kawadia, learned counsel for the respondents submitted

that the petitioner's contention is not in conformity with the

statutory provisions and argued that had the legislature intended

to include the plaintiff or the defendant within the expression

'witness', the expression used in Order XIII Rule 1(3) would have

been 'the parties or their witness' and in face of the expression

'witness' used in Rule (3), the petitioner's prayer cannot be

granted.

7. He further submitted that in light of the adjudication made

by this court in the case of Kirodi Lal (supra), the petitioner has no

case worth indulgence.

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8. Heard learned counsel for the parties and perused the

material available on record.

9. Before adverting to the rival contention, it would not be out

of place to reproduce the relevant provision contained in Order

XIII Rule 1(3) of the Code of Civil Procedure which reads thus:

"(3) Nothing in sub-rule (1) shall apply to documents-

(a) produced for the cross-

examination of the witnesses of the other party; or

(b) handed over to a witness merely to refresh his memory."

10. On the first flush, what has been argued by Mr. Nagda,

appears to be attractive that the expression 'witness of other

party' cannot be construed restrictively and the plaintiff or the

defendant who appear in the witness box cannot be excluded from

the ambit of expression 'witness'. But then, in face of the direct

judgment rendered in the case of Kirodi Lal (supra), there remains

hardly any scope for interference, as this Court is bound by the

view taken by the Coordinate Bench.

11. In case of Kirodi Lal (supra), this Court has held thus:

"5. Having regard to the submissions made by the learned counsels for the parties, and to the impugned order, as also the provisions contained in Order XIII Rule 1(3) of the CPC, it appears that the petitioner-defendant had sought to invoke the said provision by producing certain documents during the cross-examination of the respondent-plaintiff. At this stage, it is required to be noted that the parties or their pleader are required to produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement, in view of Rule 1(1) of Order XIII, however, the said sub rule (1) would not apply to the documents, which are sought to be produced for the cross-examination of the

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witnesses of the other party, in view of sub-rule (3)(a) of the said Order. From the bare perusal of the said provisions, it transpires that the provisions contained in Rule 1(3) could be invoked by producing documents for the cross-examination of the witnesses of the other party or to refresh the memory of the witnesses. In the opinion of the Court, the said provision would apply when the witness of the party is being cross-examined, and not when the party i.e. the plaintiff or defendant, as the case may be, is being cross examined. The words used are of the witnesses of the other party and the witness in Rule 1(3) of the said Order. If the intention of the Legislature was to include the party also, it would not have used the word 'witness'. In the instant case, the documents were sought to be produced during the cross- examination of the plaintiff, who could not be said to be the witness of the party i.e. the plaintiff. Even otherwise, it appears that the documents, sought to be produced, were not produced by the defendant, as contemplated in Order XIII Rule 1(1) of CPC, and the said documents also do not appear to be relevant to the subject matter of the suit. The Court, therefore, does not find any illegality or infirmity in the impugned order passed by the Trial Court."

12. That apart, the subject application, though captioned as an

application under Order XIII Rule 1(3) is not an application under

said provision. Contents thereof and prayer made therein if

allowed would require taking said document on record and

recalling the defendant (DW-1) in the witness box. In the opinion

of this Court, provision of Order XIII Rule 1(3) of the Code of Civil

Procedure is not meant to cover such situation.

13. In view of the aforesaid and following the judgment rendered

in the case of Kirodi Lal (supra), the present writ petition is

dismissed.

14. The interim order passed by this Court stands vacated.

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