Kiran Choudhry vs Ranbir Singh Mahendra And Others on 10 December, 2013

[Cites 4, Cited by 1]

Punjab-Haryana High Court

Kiran Choudhry vs Ranbir Singh Mahendra And Others on 10 December, 2013

1. The two revisions are against the order passed by the trial Court allowing for two only of witnesses out of 9 persons cited to be examined as witnesses for the 7th defendant. The 7th defendant is the mother of the plaintiff and she was impleaded on an application filed by the principal contesting CR No. 3473 of 2012 CR No. 3864 of 2012 2 defendant, namely, the grand mother of the plaintiff. The suit relates to a claim for succession to the estate of Chaudhry Bansi Lal and to the estate of his son Surender Singh, the father of the plaintiff and the husband of the subsequently impleaded 7th defendant. The impleadment of the 7th defendant had been ordered by this Court and in the course of trial the plaintiff has examined herself and also the witnesses. The suit hinges on alleged Wills said to have been executed by Chaudhry Bansi Lal and Sh.Surender Singh. It appears that the plaintiff has also attempted to bring proof of the genuineness of the signatures found in the alleged Wills. In the course of trial the 7th defendant who has supported the plaintiff has sought permission to cross examine the plaintiff but the trial court earlier rejected the prayer on an observation that the 7the defendant is only a proforma defendant and that therefore the plaintiff cannot be cross-examined by the 7th defendant.

2. After the plaintiff's side was over, the 7th defendant has sought for examination of witnesses and has produced a list of witnesses that include examination of a hand writing expert and the Clerk of the record room in the proceedings under Section 145 Cr.P.C titled State Vs. Somvir Singh. The other witnesses cited are officials who may have secured the signatures and kept in custody the documents that would contain the signatures of Chaudhry Bansi Lal and Surender Singh at various occasions when they were being sworn to high Constitutional Offices and at the time of their assumption of duties and while filing nominations for CR No. 3473 of 2012 CR No. 3864 of 2012 3 elections. The objection taken by the contesting defendant was that the 7th defendant had already been denied the cross-examination of the plaintiff and she has therefore no right to offer any evidence or cite any person as a witness. The further contention is that the plaintiff herself has produced a hand writing expert and has tendered evidence with reference to the signatures found in the Wills propounded by her and therefore the 7th defendant cannot have her own luxury of producing witnesses to prove the correctness of the alleged Will. It is also the contention of the contesting defendant that even in the application for summoning the witnesses, no relevance of the witnesses has been set forth as mandated under Order 16 Rule 1 CPC. Civil revision No.3473 of 2012 has been filed by the 7th defendant who has a grievance that all witnesses cited by her have not been permitted to be brought as witnesses. Civil revision No. 3864 of 2012 has been filed by the chief contesting defendant to press forth her plea that the summons ought not to have been issued at all for the several objections which I have already outlined above.

3. It must be remembered that revisional jurisdiction will be confined only to interference against illegal orders and not even to a wrong order in as much as Section 115 CPC has undergone a change and unless the interim order which if it were to have been decided otherwise, would have gone to dispose of the case, it cannot be a subject of revision to this Court under Section 115 CPC. The point therefore that has to be seen is whether there is anything illegal about the order that could derail the course of justice CR No. 3473 of 2012 CR No. 3864 of 2012 4 for intervention before this Court.

4. If a person is arrayed as a party in Court it cannot be merely for the luxury of sitting on the ring watching the game played out in the arena. The impleadment ought to serve some purpose and that purpose for a person impleaded shall be to allow her the opportunity to do everything which is legally permissible. That would include the right to produce herself as a witness and also offer any person what she seeks to support through her written statement. The defendant at whose instance the 7th defendant has been impleaded cannot gag her by characterizing her presence as a mere proforma party. If the impleaded defendant has a common cause with the plaintiff, to the extent that she is not a person who contests the plaintiff's plea, all that can be done to protect the contesting defendant's interest shall be to cite her as a witness before the contesting defendant examines herself. In the manner of cross-examination if the 7th defendant offers her version, the plaintiff shall have a first right to cross examine so that even if anything adverse to the contesting defendant is brought forth through leading questions by the plaintiff, the defendant can protect herself from such answers by a right of cross examination after the plaintiff's cross- examination is over. If on a previous occasion, the cross examination of the 7th defendant was denied, it cannot still forestall any right of the 7th defendant to examine herself in her turn. I have reasons to doubt even the correctness of the order already passed by the Court below in not allowing for cross examination of the 7th CR No. 3473 of 2012 CR No. 3864 of 2012 5 defendant but I will not let that come in the way of the 7th defendant offering herself as a witness or citing any person as a witness. This would therefore dispose of the objection taken by the Senior Counsel Mr. Puneet Bali about the effect of denial to the 7th defendant to cross-examine the plaintiff in her status as a proforma defendant and the alleged non-disclosure by the 7th defendant of the earlier order denying the right of cross-examination of the plaintiff.

5. The objection that the reasons for summoning witnesses have not been given is surely a valid one. A party will not have a liberty of citing several witnesses without taking the court to confidence why the court's process was being taken to summon a particular witness. I will find the provision under Order 16 requiring the purpose for which the witness was to be examined has a salutary principle to put parties on guard of why certain witnesses are being sought to be summoned. I have seen through the list of witnesses. The list contains the names of all officials who ought to have custody of documents containing the authentic signatures of Chaudhry Bansi Lal and his son Surender Singh when they had assumed constitutional offices and when their signatures should have been subscribed in affirmation of the oaths undertaken by them. I elicited from the learned Senior counsel for the 7th defendant that he wants to examine the witnesses to produce the documents in their custody containing the signatures of Chaudhry Bansi Lal and his son. What ought to have been done through the petitions containing request for summons, I have been able to elicit orally. That I would think is CR No. 3473 of 2012 CR No. 3864 of 2012 6 sufficient for the first defendant to know if she had not already known why the witnesses were being summoned. I find the relevance of the signatures contained in the documents to the issue that falls for consideration in this case, namely of the truth and validity of the Wills. The trial court itself should have insisted on an appropriate petition under Order 16 Rule 1 CPC and not merely a list of witnesses as it has obtained. I will find that to be not too serious an error to constitute any illegality. An error in procedure which need not be interfered with, since there is no injustice or hardship that could be caused to the contesting defendant.

6. Even an objection that the plaintiff has already given her witnesses including the hand writing expert ought not to foreclose a right which the 7th defendant has, to reinforce her own defence that the Will propounded by her daughter as a plaintiff is genuine and the signatures found could be proved to be genuine by comparison with authentic documents. If the plaintiff's own attempt to bring further witnesses had failed , it ought not to still be a reason for preventing the 7th defendant from bringing her evidence.

7. As I have observed, a proforma defendant is not a dummy but described as such, to identify the said person as not in principal contest to the plaintiff's case but where here presence is all the same, necessary or proper. This is also to elicit a procedure about who will have the first right of cross-examination and the order of citation of witnesses. I have already indicated about how the 7th defendant and her witnesses will be examined. To reiterate, it shall CR No. 3473 of 2012 CR No. 3864 of 2012 7 be in such a way that the first defendant is not put to prejudice and the effect of her cross examination is not diluted by the plaintiff who could even ask leading questions. I have therefore directed that the plaintiff must cross-examine first before the first defendant cross examines the 7th defendant and her witnesses.

8. The order passed already is modified in allowing for all the witnesses cited by the 7th defendant to be brought. Their own personal attendance as witnesses may not be necessary, except for the hand writing expert. All other officials are entitled to furnish the documents in their respective custody through authorized persons and the personal appearance of any of the State functionaries cited is dispensed with through this order.

9. Civil revision No. 3473 of 2012 is therefore allowed providing for all documents to be brought through persons cited as her witnesses or through their respective authorized agents. Civil revision No. 3864 of 2012 is dismissed.

10. Mr. Bali learned Senior counsel in C.R. No.3864 of 2012 seeks for time frame to be fixed. Such time frames are more observed in breach than meaningful compliance. I decline to make any futile exhortations for expeditious disposal and let the resourcefulness of the counsel and the Presiding Officer to dictate the course of the trial.

(K. KANNAN) JUDGE December 10, 2013 archana

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Punjab-Haryana High Court