Madhya Pradesh High Court
Bherusingh vs Jagdish on 20 September, 2017
Author: Vivek Rusia
Bench: Vivek Rusia
-: 1:- Writ Petition No.4250 of 2016.
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Single Bench )
( Hon'ble Shri Justice Vivek Rusia)
Writ Petition No.4250 of 2016
Bherusingh s/o Indersingh
VERSUS
Jagdish s/o Ratanlala and another
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Shri A.K.Trivedi, learned counsel for the petitioner.
Shri Yashpal Rathore, learned counsel for the Respondent No.1.
Ms. Bhakti Vyas, learned Govt. Advocate for the Respondent
No.2/State.
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O R D E R
( Passed on this 20th day of September, 2017 ) THE petitioner has filed the present petition being aggrieved by the order dated 29.04.2016 by which plaintiff has been denied to give the evidence and application under Section 151 of CPC has been rejected.
[2] The petitioner/plaintiff filed the suit for declaration, permanent injunction and possession against the defendant No.1 for the land Survey Nos.164/1, 164/3 and 165/1 of Village Sanghavi Kheda, Tehsil Mahidpur, District Ujjain. According to the plaintiff he purchased the said property in the name of his wife by registered sale-deed dated 08.11.2006 but he is in possession and using the said land. The plaintiff was implicated in a criminal case and was
-: 2:- Writ Petition No.4250 of 2016.
arrested on 17.04.2006. His 6 sons were also arrested along with him. The local villagers have threatened the wife of the plaintiff, therefore, she had to leave the village. That to contest the criminal case she took some money from Shri Ratanlala, Patwari of the said area and he took advantage of her helplessness and obtained her thumb impression on blank papers and got transferred the land in the name of his son. The plaintiff was not released on bail but vide judgment dated 18.06.2007 has been acquitted from the criminal case. The wife of the plaintiff has expired, therefore, he has become the owner of the land and applied for mutation then he came to know about registration of sale-deed dated 08.11.2006 in favour of the defendant No.1. Therefore, he filed the suit for setting-aside the sale-deed dated 08.11.2006.
[3] The defendant No.1 filed the written statement denying that Ratanlala was never posted as Patwari in Village Sanghavi Kheda. The wife of the plaintiff sold the property to him by way of registered sale-deed and he has paid the sale consideration of Rs.2,61,800-00 to her.
[4] On the basis of the pleadings, the Trial Court has framed 5 issues for adjudication on 24.10.2013. On 17.12.2015 the plaintiff has closed his evidence . The plaintiff filed his affidavit under Order XVIII Rule 4 of CPC but could not present himself for cross-examination on various dates. Thereafter he filed an application under Section 151 of CPC that his evidence be taken on record. The said application was opposed by the defendant that he is filing the evidence after 2 years and on each and every day
-: 3:- Writ Petition No.4250 of 2016.
he was present in the Court but did not present himself for cross-examination. The learned Trial Court vide order dated 29.04.2016 has rejected the application on the ground that the plaintiff is attending the Court since 12.03.2013 but did not file his evidence. Hence, the present petition before this Court.
[5] Shri A.K.Trivedi, learned counsel appearing on behalf of the petitioner submits that in absence of the plaintiff's evidence the Trial Court may dismiss his case, therefore, his evidence is necessary. At present the evidence of defendant has not been started. Therefore, one opportunity be given to him.
[6] Shri Yashpal Rathore, learned counsel appearing on behalf of the Respondent No.1 submits that under Order XVIII Rule 3A of CPC, the plaintiff is required to reserve his right to examine himself later on. Since the said right has not been reserved, therefore, now the plaintiff cannot be permitted to give the evidence. In support of his arguments, he placed reliance over the judgment in the case of Bhanumathy v/s M. Venkatesan [AIR 1989 Madras 239] and Ayyasami Gounder v/s T. S. Palanisami Gounder [AIR 1990 Madras 237].
[7] In the application filed under Section 151 of CPC, the plaintiff has stated that due to over sight he could not file his affidavit under Order XVIII Rule 4-A of CPC before other witnesses and this is a mistake of counsel for which he should not made to suffer. By labelling allegation against the counsel is no ground available to any party to get the order recalled or get any favourable order. The plaintiff,
-: 4:- Writ Petition No.4250 of 2016.
who is a 70 years of age, was regularly attending the Court since 2013. The case was listed time to time and he filed the evidence of his witnesses but he himself has not filed his affidavit, to the reason best known to him. But now he is blaming the counsel by filing application under Section 151 of CPC. Under Order XVIII Rule 1 of CPC it is for the plaintiff to begin the evidence. The Order XVIII Rule 3 of CPC specifically provide where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf, unless the Court permits him to appear at later stage. Admittedly in the present case the petitioner has never sought leave from the Court to appear at later stage. When there is specific provision under Order XVIII Rule 3 of CPC, then the provisions of Section 151 of CPC cannot be invoked for giving permission to the plaintiff to give evidence. Therefore, the Trial Court has not committed any error while rejecting the application.
[8] The petition is hereby dismissed.
[ VIVEK RUSIA ]
JUDGE
Sharma AK/*