Madhya Pradesh High Court
Yashvantrao vs Hussain on 27 June, 2018
-: 1 :-
HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE
Misc. Petition No.989 of 2018.
(Yashvantrao s/o Jivraj Bothra v/s Hussain s/o Kalimuddin Bohra and others)
Indore, Dated : 27.06.2018:-
Shri Vinay Gandhi, learned counsel for the appellant.
Shri S.C.Agrawal, learned counsel for the Respondent
Nos.1 and 2.
Heard on the question of admission.
O R D E R THE petitioner has filed the present petition being aggrieved by the order dated 29.01.2018 passed by Second Additional District Judge, Jhabua by which application under Section 151 of CPC filed by the defendant No.1 has been rejected.
[2] The Respondent Nos.1 and 2 are son and father. They filed the civil suit against the present petitioner seeking decree of specific performance of contract. The present petitioner being a defendant filed written-statement and thereafter the Trial Court framed the issues for adjudication.
[3] The plaintiff No.2, who is father, had examined himself first as PW-1 and thereafter filed affidavits of other witnesses, some of them have been cross-examined by the defendants. Thereafter the plaintiffs filed an affidavit of plaintiff No.1 under Order XVIII Rule 4 of CPC. The defendant No.1 filed an application under Section 151 of CPC raising objection that under Order XVIII Rule 3A of CPC the plaintiffs ought to have filed their evidence first before giving the evidence of other plaintiffs. The Trial Court vide order dated 29.01.2018 has turn down the said objection on the ground that when the plaintiff No.2 filed -: 2 :- his evidence, the plaintiff No.1 was in Kuwait. The cross examination of other witnesses, namely Dines Solanki, Abhay Kumar Mehta and Riyajuddin Kaji have not been done and only the cross-examination of Kalimuddin, Vikas Arora, Kamlesh Jain have already been done. The evidence of the plaintiffs have not been closed so far and the Court has rightly taken the affidavit of plaintiff No.1 on record. Being aggrieved by the aforesaid order, the defendant No.1/petitioner has filed the present petition before this Court.
[4] Shri Vinay Gandhi, learned counsel for the petitioner submitted that under Order XVIII Rule 3A of CPC where the plaintiff himself wishes to appear as a witness, he shall so appear before any other witnesses in the witness box. The provisions of Rule 3A has been inserted with the intention that the plaintiff has to prove his case first and he cannot be permitted to fulfill the lacunas came in his evidence after evidence of other witnesses. Therefore, the Court has wrongly taken the affidavit of plaintiff No.1 on record and the same is liable to be discarded. In support of his contention he has placed reliance over the judgment passed by this Court in the case of Saphi Mohammad v/s Ram Jiyawan [2000 (4) MPHT 454]; Samata v/s V.G.Siddharth [2017 (3) MPLJ 580] and the judgment passed by the Punjab and Haryana Court in the case of Jasvir Singh v/s Jaspal Singh [(2015) 179 PLR 130].
[5] Per contra Shri S.C.Agrawal, learned counsel for the Respondent Nos.1 and 2 submitted that the plaintiff No.1 was in Kuwait, therefore, plaintiff No.2, who is father of plaintiff No.1, has filed his affidavit. The suit is being -: 3 :- mainly contested by plaintiff No.2 and the cross- examination of other witnesses have not been completed so far, therefore, the Court did not commit any error while accepting the affidavit of plaintiff No.1 on record. He further submitted that the provisions of Rule 3A are not mandatory in nature but are discretionary. In support of his contention, he has placed reliance over the order passed in the case of Beharilal v/s Sudama Prashad [1980 (I) MPWN 51]; Ramchandra v/s Bhagwandas [1993 (I) MPWN 46] and Laxman Singh v/s State of M.P. [2007 (I) MPWN 83].
[6] The plaintiff Nos.1 and 2 are son and father. As per pleading in para 3 of the civil suit, the plaintiff No.2 had negotiated with defendant No.1 for purchase of the suit property in the name of plaintiff No.1. In para 5 of the plaint, it is further pleaded that at the time of agreement, plaintiff No.1 is in Kuwait, therefore, the plaintiff No.2 is a main contesting the suit and undisputedly he has filed his affidavit first and he has been cross-examined, thereafter he filed the affidavits of other witnesses. Only three witnesses have been cross-examined so far by the defendant and in between the plaintiff No.1 came to India and filed his affidavit and appeared in the witness box. Instead of cross- examining him, the defendant filed an objection under Section 151 of CPC. In the case of Laxman Singh (supra), this Court has held that affidavits of all witnesses in examination-in-chief need not be filed together and the witnesses should be cross-examined one by one. In the case of Ramchandra (supra), this Court has held that allowing a party to appear as a witness after examination of his other witnesses under the provisions of Order XVIII Rule 3 (a) of -: 4 :- CPC is discretionary in nature.
[7] When at the time of cross-examination of the witnesses, other then plaintiff No.2, the defendant did not raise any objection and cross-examined them. The defendant ought to have raised objection under Order XVIII Rule 3A of CPC at the relevant time. Even otherwise the consequence of non-compliance of Order XVIII Rule 3A of CPC is provided in the CPC. At the most, during the course of final hearing of the suit the defendant No.1/petitioner may point out the Court about the effect and consequence of non compliance of the provisions of Order XVIII Rule 3A of CPC. The defendant may also plead and prove the prejudice caused to his defence due to non compliance of the said provisions. Therefore, the Court has not committed any error while accepting the affidavit of plaintiff No.1 on record.
[8] The petition is accordingly dismissed.
[ VIVEK RUSIA ] JUDGE (AKS) Digitally signed by Anl Kumar Sharma Date: 2018.07.03 11:34:48 +05'30'