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2009 DIGILAW 327 (JK)

Mehraj-ud-Din Kant v. Nadia Akhter

2009-07-06

MUZAFFAR HUSSAIN ATTAR

body2009
1. Despite service, nobody appears for respondent. Order dated 17th March 2009 passed by Sub Judge Srinagar in case titled Mehraj-ud-Din Kant vs. Nadia Akhter is called in question. The respondent instituted civil original suit in which she has prayed for issuance of following reliefs: - decree for declaration the effect that the residential house and the land underneath and appurtenant is that of plaintiff as the amount for the purchase of land and for the construction of the house was provided by the father of plaintiff and by selling ornaments/jewellery and precious articles and even by borrowing from her brother and father, as such the house alongwith the land underneath and appurtenant is that of plaintiff as absolute owner and has right to enjoy the same and the defendant has no right whatsoever regarding the ownership and title. to pass decree for declaration to the effect that defendant have no right whatsoever to alienate the house in any manner or even by agreement to sell, gift, exchange, mortgage or sale and if any such agreement executed by the defendant in favour of any person by declared null void in effective inoperative not binding on the plaintiff. to pass a decree for injunction restrained the defendant and commanding upon him to refrain from making any alienation in any manner and further be commanded upon to desist from interfering in the peaceful enjoyment and possession of the plaintiff, of the house as delineated in the site plan as attached annexure-P any other order or direction or decree which has not been specifically prayed for the Honble Court deem fit and proper in the circumstances of the case be also passed in favour the plaintiff and against the defendant and decree be accordingly passed in favour of plaintiff against defendant, to meet the ends of justice. 3. The petitioner and respondent were tied in a marital knot and out of the said wedlock the respondent has begotten three children to the petitioner. The marriage between petitioner and respondent has been dissolved. After filing of written statement and framing of issues evidence has been lead by the respective parties before the trial court. 3. The petitioner and respondent were tied in a marital knot and out of the said wedlock the respondent has begotten three children to the petitioner. The marriage between petitioner and respondent has been dissolved. After filing of written statement and framing of issues evidence has been lead by the respective parties before the trial court. When the suit had reached to hearing stage, the petitioner filed an application seeking permission from the court to appear as witness before the court on the plea that he could not appear as his own witness before the trial court as he was not properly advised. The respondent filed the objection to the said application, which application was dismissed by the learned trial Judge. 4. Heard learned counsel for the petitioner. Considered the matter. 5. The learned trial Judge has dismissed the application for the reasons that the ground taken by the petitioner is an evasive ground and if the application is allowed on such a ground, then, it may open flood gates as application of like nature may be filed. The order 18 Rule 3-A Code of Civil Procedure is reproduced as under: - (3-A. Party to appear before other witness. 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.) 6. The purpose of making the amendment in Code of Civil Procedure by way of introducing Rule 3-A, it appears was to find out the exact controversy which the party may like to settle through the court intervention. The purpose of introducing Rule 3-A, it appears may be further to narrow down the controversy between the parties on the basis of their statements, as the parties may have projected many issues in their respective pleadings. The other purpose of introducing the Rule 3-A would be to ask the party to appear as his witness in the first instance, so as to confine the other witnesses which may appear thereafter to the controversy raised by the party in his statement. The Rule 3-A on its plain language does not provide for any penal consequences, in case, a party fails to appear as his own witness before other witnesses on his behalf are examined. The Rule 3-A on its plain language does not provide for any penal consequences, in case, a party fails to appear as his own witness before other witnesses on his behalf are examined. The Rule 3-A on its plain interpretation leads to the conclusion that it is only directory and not mandatory in nature. The rule, however, is to be strictly applied and enforced where the circumstances of the case warrant such an enforcement. However, there can be circumstances in which the strict compliance may result in great hardship to the party or may result in miscarriage of justice. Every case is to be considered on its own facts and circumstances. 7. In the present case, the stand taken by the petitioner is that because of wrong legal advice, he could not appear as his own witness before the other witnesses were examined. Unless the plea so taken is found to be malafide, it could not become the ground for dismissing of the application. The learned trial court has not even for prima facie purposes stated in the impugned order that the application is malafide to derail the proceedings, or in the facts and circumstances of the case, allowing such application would result in gross injustice. It would not be in the interest of the petitioner, as stated by learned counsel for the petitioner who is out of possession of the suit property, to delay disposal of case. 8. Learned trial Judge has nowhere stated in the impugned order that by allowing the application, the respondent/plaintiff will be prejudiced. 9. In view of the above discussions, this petition succeeds and is accordingly allowed the impugned order is set aside. The learned trial Judge will allow one opportunity to the petitioner/defendant to appear as his witness on a date to be fixed by the learned trial Court. It is made clear that Trial Court shall afford only one opportunity to the petitioner to appear as his witness. 10. Disposed of alongwith CMP. Record be send back immediately.