[Cites 5, Cited by 0]
Rajasthan High Court - Jodhpur
Lrs Of Late Shri Nirbhay Singh vs Smt. Chelna Devi (2026:Rj-Jd:11464) on 9 March, 2026
[2026:RJ-JD:11464]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5206/2026
1. LRs Of Late Shri Nirbhay Singh, S/o Shri Pushpendra
Singh Chundawat -
1/1. Smt. Gayatri Devi W/o Late Shri Nirbhay Singh
Chundawat, Aged About 60 Years, Resident Of 14,
Salumber House, Saheli Nagar, Udaipur (Raj.)
1/2. Kunwar Devwrat Singh S/o Late Shri Nirbhay Singh
Chundawat, Aged About 35 Years, Resident Of 14,
Salumber House, Saheli Nagar, Udaipur (Raj.)
----Petitioners
Versus
1. Smt. Chelna Devi W/o Amritlal Taya, Resident Of Ashok
Nagar, Udaipur (Raj.)
2. LRs Of Nirbhay Singh -
2/1. Smt. Mringagini Kumari D/o Late Shri Nirbhay Singh
Chundawat, Aged About 38 Years, Resident Of 14,
Salumber House, Saheli Nagar, Udaipur (Raj.) Presently
Residing At Kundanpur House, Kota (Raj)
2/2. Himmat Kunwar W/o Late Shri Pushpendra Singh
Chundawat, Aged About 79 Years, Resident Of 14,
Salumber House, Saheli Nagar, Udaipur (Raj.) Presently
Residing At Nimaj Fort, Dist. Ajmer (Raj)
----Respondents
For Petitioner(s) : Mr. Jhamak Lal Nagda
For Respondent(s) : Mr. Deelip Kawadia
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
09/03/2026
1. The petitioners have preferred present writ petition assailing
the order dated 04.02.2026 (Annx.1) passed by the learned
Additional Senior Civil Judge No.1, Udaipur in Civil Original Suit
No.56/1995, whereby the application filed by the petitioners under
Order XIII Rule 1(3)(a) & (b) read with Section 151 of C.P.C.
seeking permission to place an order of the Urban Improvement
Trust on record and to permit cross-examination of defendant's
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witness D.W. 1 Amrit Lal Taya with reference to the said
document, has been rejected.
2. Heard learned counsel for the parties.
3. Learned counsel for the petitioners submits that during the
course of cross-examination of the defendant's witness Shri Amrit
Lal Taya (DW-1), a question was put to him in relation to an order
issued by the Urban Improvement Trust. However, the said
question was objected to by the counsel for the defendants.
4. It is submitted that in the aforesaid circumstances, the
petitioners preferred an application before the learned trial Court
under Order XIII Rule 1(3)(a) read with Section 151 CPC, praying
that the document dated 01.01.2004 be taken on record and that
the petitioners be permitted to put questions to DW-1 with respect
to the said document during cross-examination. The said
application was earlier rejected by the learned trial Court vide
order dated 20.01.2018, against which the petitioners preferred
S.B. Civil Writ Petition No.2714/2018 before this Court.
5. Learned counsel further submits that the aforesaid writ
petition came to be dismissed by this Court vide order dated
29.08.2023, however, while dismissing the petition, this Court
granted liberty to the petitioners to move an appropriate
application before the learned trial Court. In pursuance of the
liberty so granted, the petitioners filed the present application
before the learned trial Court.
6. It is contended that the learned trial Court, while rejecting
the application, has failed to appreciate that as many as 15 civil
suits between the parties are pending and are being tried together
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after consolidation, and the evidence of DW-1 Shri Amrit Lal Taya
is being recorded commonly in the consolidated proceedings. It is
further submitted that DW-1 is not a party in all the suits and in
several of the consolidated suits, he appears only as a witness.
Despite this factual position, the learned trial Court erroneously
proceeded on the assumption that DW-1 is a party in all the
matters and therefore, declined the prayer of the petitioners.
7. Learned counsel for the petitioners submits that the learned
trial Court has misinterpreted the expression "appropriate
application" used by this Court in its order dated 29.08.2023 and
has rejected the application without assigning any cogent reason
as to why the application filed by the petitioners was not an
appropriate application in terms of the liberty granted by this
Court.
8. It is further contended that the learned trial Court has failed
to appreciate that under Section 3 of the Indian Evidence Act,
1872, documents produced before the Court for inspection
constitute documentary evidence and a witness may be
confronted with such document during cross-examination. It is
argued that the document dated 01.01.2004 came to the
knowledge of the petitioners subsequently when inquiries were
made regarding the alleged construction permissions and
therefore the petitioners were justified in seeking permission to
place the said document on record.
9. Learned counsel for the petitioners has further relied upon
the judgment of the Hon'ble Supreme Court in Mohd. Abdul
Wahid vs. Nilofer & Anr. reported in (2024) 2 SCC 144,
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wherein it has been held that there is no material distinction
between a party to a suit appearing as a witness and a witness
simpliciter, and documents may be put to such witness during
cross-examination in accordance with law. It is submitted that in
view of the aforesaid legal position, the learned trial Court ought
to have allowed the application so as to enable effective cross-
examination of the witness.
10. Learned counsel also submits that earlier during the cross-
examination of the plaintiff, the defendants themselves produced a
book titled "Salumber Ka Itihaas" written by Vimla Bhandari,
which was permitted to be taken on record even though the same
had not been produced earlier. Therefore, the rejection of the
petitioners' application in a similar situation amounts to
discriminatory treatment and has caused serious prejudice to the
petitioners.
11. Per contra, learned counsel for the respondents supported the
order impugned and submitted that the petitioners have
attempted to re-agitate the very same issue which had earlier
been considered by this Court while dismissing S.B. Civil Writ
Petition No.2714/2018. It is contended that the petitioners have
again filed an application under the same provision, namely Order
XIII Rule 1(3) of CPC, which had already been held to be
inapplicable in the earlier order of this Court dated 29.08.2023.
12. Learned counsel for the respondents further submits that
this Court, while dismissing the earlier writ petition, specifically
observed that the provisions of Order XIII Rule 1(3) of CPC are
not intended to cover such a situation where the document is
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sought to be introduced at the stage of cross-examination along
with a prayer to recall the witness.
13. This Court has considered the rival submissions advanced by
learned counsel for the parties and has perused the material
available on record.
14. A perusal of the order dated 29.08.2023 passed by a
Coordinate Bench of this Court in S.B. Civil Writ Petition
No.2714/2018 reveals that the writ petition was dismissed after
considering the applicability of Order XIII Rule 1(3) of CPC in the
context of the very same document sought to be produced by the
petitioners. The relevant portion of the order dated 29.08.2023 is
reproduced as under :-
"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
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
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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."
15. Although, liberty was granted to the petitioners to move an
appropriate application before the learned trial Court, such liberty
cannot be construed to permit the petitioners to re-agitate the
very same prayer under the same statutory provision which had
already been considered and found inapplicable by this Court.
16. The application filed by the petitioners before the learned
trial Court again invokes Order XIII Rule 1(3) of CPC and
essentially seeks the same relief of introducing the document
dated 01.01.2004 during cross-examination of DW-1. Thus, the
application substantially reiterates the earlier request which had
already been declined.
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17. The scope of liberty granted by this Court was limited and
cannot be interpreted to allow reopening of the issue already
adjudicated. The learned trial Court has therefore rightly observed
that the application filed by the petitioners cannot be treated as
an "appropriate application" within the meaning of the liberty
granted by this Court.
18. The contention of the petitioners regarding consolidation of
suits and the status of DW-1 does not alter the essential nature of
the application. The relief sought continues to be introduction of a
document at the stage of cross-examination through recourse to
Order XIII Rule 1(3) CPC, which had already been examined
earlier.
19. The judgment relied upon by the petitioners in Mohd. Abdul
Wahid vs. Nilofer & Anr. does not advance their case in the facts
of the present matter, as the issue here pertains to the procedural
stage and the manner in which the document is sought to be
introduced after the matter had already been considered earlier.
20. Learned trial Court, therefore, cannot be said to have
committed any jurisdictional error or material irregularity while
rejecting the application filed by the petitioners.
21. The supervisory jurisdiction of this Court under Article 227 of
the Constitution of India is limited and does not warrant
interference with well-reasoned interlocutory orders passed by the
trial Court unless patent illegality or perversity is demonstrated.
No such ground is made out in the present case.
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22. In view of the aforesaid discussion, this Court finds no
infirmity in the order dated 04.02.2026 passed by the learned trial
court.
23. Consequently, the writ petition fails and is hereby dismissed.
24. The stay application and all pending applications, if any, also
stand disposed of.
(MUKESH RAJPUROHIT),J
64-Ramesh/-
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