M/S.Shah Industries & Anr vs Vadhani Industrial Estate on 19 November, 2008

[Cites 1, Cited by 2]

Bombay High Court

M/S.Shah Industries & Anr vs Vadhani Industrial Estate on 19 November, 2008

. The Petitioners-Plaintiffs' an affidavit of examination in chief of his witness P.W.3 is rejected, as the Defendants raised the objection by notice of Motion not allowing to examine P.W.3, therefore, this petition. The suit is already fixed for cross examination of P.W.3. Merely because Plaintiff No.1 has examined himself as P.W.1 and thereafter examined other partner P.W.2 that itself cannot be the reason to deprive the Plaintiffs to examine any other witnesses, though he may be partner of the same firm.

There is no question of seeking permission under Order 18 Rule 3-A of the Code of Civil Procedure (for short, "C.P.C.") to examine their other partners. Order 18 ::: Downloaded on - 09/06/2013 14:04:28 ::: ( 2 ) Rule 3-A reads thus:-

"3-A. 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."

2. be The object and purpose of Order 18 Rule 3-A cannot interpreted to restrict the rights of the parties to lead evidence of his witnesses. This provision is directory. In a given case Court may pass appropriate order.

3. After examining the other witnesses specially when Plaintiffs or party desire and wants to lead the evidence to support of his case. There is no total prohibition or a bar that Court should not grant such permission. On the contrary, it is desirable that full opportunity should be given to the parties to the proceedings to put their evidence at the earliest possible stage.

::: Downloaded on - 09/06/2013 14:04:28 :::

( 3 )

4. In the present case, it is plaintiffs' firm which is leading the evidence, one after other, as per the list of witnesses already given. There is nothing on record that it is intended to fill up the lacuna. The evidence of Defendants not even started. Every partners of a party may or may not aware a full facts.





                                                          
     It     is necessary to prove the fact and the case by all

     possible         means       including         by    examining           concerned

     witnesses.           In commercial matters or even otherwise a




                                             
     series     of        transactions        need       to be       proved      by     the

     parties     through
                           
     wrongly invoked and applied.
                                  their witnesses.            This provision              is
                          
     5.      Taking        all    this into account in                 my   view,       the

     impugned        order       need    to be set aside and it                  is     set
      


     aside     accordingly.             The    matter           be     proceeded          in
   



     accordance with law.

6. The Petition is allowed, accordingly.

( ANOOP V. MOHTA, J.) ::: Downloaded on - 09/06/2013 14:04:28 :::

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Bombay High Court