Capt. Kunal Khajuria & Anr vs Major General Sudhir Mohan (Retd.) & Ors on 14 November, 2022

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Delhi High Court - Orders

Capt. Kunal Khajuria & Anr vs Major General Sudhir Mohan (Retd.) & Ors on 14 November, 2022

1. This application has been filed by the defendant No.2 under Order XVIII Rule 3A read with Section 20 of the Delhi High Court (Original Side) Rules, 2018 and Section 151 CPC with the following prayers:

"In view of the above, it is therefore most respectfully prayed that the present application may be allowed and

(i) The Defendant no. 2/Applicant may be allowed to examine the witnesses as mentioned in para no. 4 of the present application and as per the summoning application being LA No.1 0321 of 2022 prior to his examination.

(ii) Pass any such other or further order(s) as this Hon 'ble Court may deem fit and proper in the facts and circumstances of the present case in favour of the Defendant no. 2/Applicant and against the Plaintiff."

Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:21.11.2022 12:02:19

2. It is the submission of Mr. G.V. Rao, learned Sr. Counsel appearing for the defendant No.2 / applicant that the present Suit has been filed for partition and the defendants propounded a registered Will dated September 3, 1997 executed by Late S.N. Mohan who left for heavenly abode on April 10, 2010.

3. Pleadings in this case are complete. Based on the pleadings this Court on May 10, 2022, framed the following issues:

(i) Whether the Will dated 03.09.1997 is the last Will of late Sh.

Shyam Narain Mohan and is genuine and valid, if so its effect? OPD 1, 2 & 4

(ii) Whether gift deed dated 08.02.2019 executed by defendant No. 1 in favour of defendant No.4 is valid and if so its effect? OPD 4

(iii) Whether the plaintiffs are entitled to the decree of partition and mandatory injunction as prayed for? GPP

(iv) Relief.

4. Counsel appearing for the plaintiff had prayed for framing of an additional issue with regard to the sound disposing mind of the Testator. The court was of the view that such an issue would not be required to be separately framed as the said question is covered in issue No.1

5. Mr. Rao would submit that the defendants being the propounders of the Will which is required to be proved through attesting witness to the Will and the Registrar, the witnesses at serial nos. 2 to 6 of list of witnesses, should appear first, before the defendants Nos. 2 and 4 steps in the witness box to establish the genuineness and validity of the Will and discharge their primary onus. He submits that during the course of hearing on October 11, Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:21.11.2022 12:02:19 2022, the counsel for the plaintiff has objected to the appearance of other witness of the defendants to the Will dated September 3, 1997 in the witness box. According to Mr. Rao, the objection is misplaced as Order XVIII Rule 3A of the Code of Civil Procedure, 1908 and Rule 20 of Chapter XI of the Delhi High Court (Original Side) Rules, 2018 give ample discretion to the Court to allow the request of the defendant No.2 for producing / calling any other witness before the defendant's examination, for the reasons to be recorded.

6. He states, defendant No.2 / applicant has been bestowed with the only responsibility to establish the genuineness of Will dated September 3, 1997. Therefore, it would be relevant to examine attesting witness and the Registrar as per Section 68 of Indian Evidence Act at the first instance and has accordingly, filed the present application.

7. Additionally he states that the medical condition of the defendant No.2 also demands, as he is unable to appear in the witness box immediately, that witness nos. 2 to 6 of list of witnesses be allowed to appear in the witness box for their deposition. In support of this submission, he has relied upon the Judgment of the Coordinate Bench of this Court in the case Naveen Chander Kapur v. State & Ors., Test. Case No. 3/2011 wherein, according to him, this Court has clearly held that the mode of proving a Will is the examination of the attesting witness and no other, so long as the attesting witness is available, the examination of such attesting witness would not cause any prejudice to the respondents/appellants therein. Once the Will is brought on record in evidence, the plaintiffs would still retain their right to question the defendants on the validity of the execution of the Will, particularly on the existence of the suspicious circumstances.

Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:21.11.2022 12:02:19

8. He has also relied upon the Judgment in the case of Sau. Devkabai Chudamamn Patil and Anr. v. Santosho Supadu Patil and Ors. 2013 SCC OnLine Bom 118, wherein the Bombay High Court has held that the provisions of Order XVIII Rule 3A of the Code of Civil Procedure are not mandatory but directory in nature. In an appropriate case like the case in hand, if the defendants are able to place on record that, they are not keeping good health, in that eventuality, the trial Court can consider the prayer of the defendant No.2 / applicant that the other witnesses be examined first before the defendant(s) are examined. He seeks that the present application be allowed and the defendant no.2 be allowed to produce / summon the witnesses at serial nos. 2 to 6 of the list of witnesses in the witness box before he and defendant No.4 could appear.

9. On the other hand, Mr. Y.P. Narula, learned counsel appearing for the plaintiff would contest the application by stating that as per the provisions of Order XVIII Rule 3A read with Provisions of Rule 20 of Chapter XI it is clear that a party has to appear in the witness box first before other witnesses steps in. According to him that being the rule, the only exception is for certain unforeseen circumstances like medical grounds, out of station, absence of a party due to death of relative, absence of plaintiff due to marriage ceremony of daughter or son etc., can the court exercise its discretion and allow the other witnesses to appear before the party. He states, it is not the case of the defendant No.2 who has propounded the Will that for certain unforeseen circumstances, he cannot appear in the witness box on the date fixed and as such the witness at serial Nos. 2 to 6 of the list be allowed to appear. He lay stress on the fact that the intent of the provisions is primarily to ensure that there is no miscarriage of justice, as Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:21.11.2022 12:02:19 there is apprehension, that defendant No.2 under the guise of those provisions may take advantage by producing the witness nos. 2 to 6 in the witness box first and he and defendant No.4 appearing later only to fill up lacunae that might be left out in the evidence of witnesses.

10. According to Mr. Narula, in the facts of this case the discretion cannot be exercised in favour of defendant No.2. He relies on the judgment of the Madras High Court in the case of N.C. Kaladhran v. Kamaleswaran Ors. 2000 SCC OnLine Ker 50 and Judgment of a Coordinate Bench of this Court in the case of Pradeep Khullar v. Padmawati Khullar and Ors., CS (OS) 1294/2005 decided on November 11, 2013 and H.P. State Cooperative Bank Ltd. v. National Insurance Company Ltd. and Ors. Civil Suit No. 4086/2013 decided on April 8, 2016, in support of his submission that the defendant nos. 2 and 4 must step into the witness box before the witness nos. 2 to 6 of the list of witnesses appear. He seeks the dismissal of the application.

11. Having heard the learned counsel for the parties, the short issue which arises for consideration is whether the application of defendant No.2 to summon / produce the witnesses at serial nos. 2 to 6 of list of witnesses instead of defendant No.2 be allowed. The answer has to be in the negative, as no reason is forthcoming as to why the witnesses at serial nos. 2 to 6 need to be produced before defendant nos.2 and 4 appear in the witness box. Even the reason that the Will need to be proved under the provisions of Indian Evidence Act through the attesting witnesses does not appeal to the court as no such provision exist in the CPC or under the (Original Side) Rules that attesting witness need to step in the witness box before the party. As argued by Mr. Narula, in a given case, the Court can for reasons to be recorded Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:21.11.2022 12:02:19 permit a party to appear as a witness at a later stage. It is for the reason that the provisions of CPC and also Delhi High Court (Original Side) Rules which read as under, provide so:

"XVIII Rule 3A. Party to appear before other witnesses.-- Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.] Chapter XI Rule 20. Party to appear first.-If a party or his authorized agent or the representative of a corporate body party intends to appear as a witness, he shall so appear before any other witness, on his or its behalf, has been examined."

12. The above clearly stipulates that a party shall appear in the witness box prior to any other witness. It is only as an exception a party can appear later. So, as held in HP State Cooperative Bank Ltd. that Court can grant permission for appearance of other witness(es) before a party steps into the witness box. I agree with the apprehension expressed by Mr. Narula that in the absence of any genuine reason given by the defendant No.2 for the appearance of other witnesses, before defendant Nos. 2 and 4 steps in the witness box, is to fill the lacunae that might be left out in the evidence of witnesses at serial Nos.2 to 6 which may cause prejudice as it is the case of the plaintiff that the testator was not of a sound disposing mind. In other words, the Will is not genuine.

13. That apart, I find that with regard to medical condition of the defendant No.2 no such plea was taken in the hearings held earlier or for that matter in the present application. Such a plea / submission is clearly an Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:21.11.2022 12:02:19 afterthought and cannot be considered. This Court in its order dated May 10, 2022 has already observed that inbuilt in the Issue no.1 is also the issue relating to the unsoundness of mind of the testator. So in that sense it is necessary for defendant Nos. 2 and 4 to appear in the witness box before the other witnesses appear. Reliance placed by Mr. Rao on the judgment of the Coordinate Bench of this Court in the case Naveen Chander Kapur (supra) is concerned, the same was a Chamber Appeal filed by the respondents / appellants therein against the order passed by the leaned Joint Registrar on March 17, 2021. The learned Joint Registrar had allowed the prayer of the petitioner in view of Section 68, 69 and 71 of the Indian Evidence Act which provides that where a Will is sought to be proved the execution must be proved first. Suffice to state, though reference has been made to the provisions of Order XVIII Rule 3A of CPC, in the said order but the same has not been dealt with. There cannot be any dispute in terms of the provisions of the Section 68, 69 and 71 of the Indian Evidence Act a Will need to be proved through the attesting witnesses. The issue is not, how a Will is required to be proved, but, whether a party can appear after the attesting witnesses / the Registrar appear on behalf of that party. The said issue has to be decided in terms of the provisions of Order XVIII Rule 3A read with Rule 20 of Chapter XI of the Delhi High Court (Original Side) Rules. Both provisions are pari materia to each other. The said provisions have been interpreted by various Courts gives a discretion to the Court in certain compelling circumstances, to allow other witnesses of the party to appear in the witness box before the party steps in. In the case in hand, no case has been made out for this Court to exercise the discretion allowing witnesses Nos. 2 to 6 to step into the witness box before defendant Nos. 2 Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:21.11.2022 12:02:19 and 4. This is precisely the issue decided by a Coordinate Bench of this Court in the case of Pradeep Khullar (supra), wherein in paragraphs 15 and 16, the Court has stated as under:-

"15. As pointed out by the Madras High Court in Ayyasamy Gounder v. T.S. Palanisami Gounder, the above provision was inserted in 1976 into the CPC to ensure that there is no miscarriage of justice. If there were genuine reasons for the Plaintiff not to examine himself as a witness, such permission could be granted. However, the said provision was not to be taken advantage of by a Plaintiff who wished to plug the holes in the evidence that emerged from the examination of the Plaintiff's earlier witnesses. Even if this is not the reason why the Plaintiff is seeking to examine himself, in the present case, he has to, nevertheless, make out a strong case for deviating from that rule that the Plaintiff should examine himself first. No such strong reason has been adduced in the present case.

16. Further as has been pointed out by the Madras High Court in the aforementioned decision in Ayyasamy Gounder v. T.S. Palanisami Gounder, even if for some reason the Plaintfif was unable to examine himself first, his application under Order XCIII Rule 3 and 3A CPC should have been filed at the earliest point in time, i.e., even at the stage of commencement of examination of the Plaintiff's witnesses. In other words, once the Plaintiff knows that he is not going to examine himself as a witness right at the beginning, he should forthwith apply to the Court under Order XVIII Rule 3 and 3A CPC."

14. Similarly the Himachal Pradesh High Court in H.P. State Cooperative Bank Ltd. (supra) has in paragraphs 8 stated as under:

"8. Twelve issues framed on 4.11.2014. Court is of the opinion that plaintiff can be permitted to examine at the later stage after examination of other witnesses only on following grounds. (1) Medical grounds. (2) Out of station ground due to compelling reasons. (3) Absence of plaintiff due to death of Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:21.11.2022 12:02:19 relative. (4) Absence of plaintiff due to marriage ceremony of daughter or son. It is well settled law that examination of plaintiff in civil suit prior to other witnesses is a rule and deviation is exception. Reasons mentioned in application by applicant that documents placed on record would be proved and till the documents placed on record would not be proved plaintiff be exempted to appear as witness before other witnesses is not judicial reasonable ground because as per Indian Evidence Act documents should be proved as per primary evidence or secondary evidence as per Chapter V Sections 61, 62 and 63 of Indian Evidence Act 1872. It is well settled law that contents of documents are proved through marginal witnesses who are signatories to documents. It is held that there are no sufficient reasons mentioned in application which permit the plaintiff to record his statement at the later stage. It is well settled law that as per law plaintiff is permitted to appear in witness box twice in civil suit i.e. (1) In affirmative evidence. (2) In rebuttal evidence. In view of the fact that order XVIII Rule 3-A CPC is a rule and deviation is exception it is held that plaintiff intends to fill up lacuna in civil suit by way of examining himself as witness at the later stage. It is well settled law that plaintiff cannot be permitted to fill up lacuna in civil suit by way of appearing at later stage subsequent to other witnesses. Present suit is filed by H.P. State Cooperative Bank Ltd. having its Head Office at The Mall Shimla through its Managing Director Shri Amit Kashyap and it is prima facie proved on record that Shri Amit Kashyap is working at The Mall Shimla which is nearby the premises of H.P. High Court and Shri Amit Kashyap can appear in witness box easily. It is held that there are no reasonable judicial grounds to allow application. See AIR 1980 Madras 237 title Ayyasami Gounder and others vs. T.S.Palanisami Grounder. Also see (2002)10 SCC 184 title N.C.Kaladharan vs. Kamaleshwaran and others. In view of above stated facts point No. 1 is answered in negative."

15. The judgment of this Court in Naveen Chander Kapur (supra) does not consider the provision of Order XVIII Rule 3A and the Rule 20 of Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:21.11.2022 12:02:19 Chapter XI of (Original Side) Rules 2018, for coming to the conclusion that, the attesting witnesses can step in the witness box before the party. The said judgment is clearly distinguishable. I am of the view that no case has been made out by the defendant No.2 to enable this Court to exercise its discretion and permit witness Nos. 2 to 6 in the list of witnesses to appear before defendant Nos.2 and 4 steps in the witness box. Accordingly, the application is dismissed. Defendant Nos. 2 and 4 shall appear before the Joint Registrar for recording of evidence on December 5, 2022.

V. KAMESWAR RAO, J NOVEMBER 14, 2022/jg Signature Not Verified Digitally Signed By:ANIL KUMAR YADAV Signing Date:21.11.2022 12:02:19

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Delhi High Court - Orders