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2010 DIGILAW 442 (MP)

YOGENDRA KUMAR v. PAVAN KUMAR JAIN

2010-04-19

K.K.LAHOTI, K.S.CHAUHAN

body2010
Judgment ( 1. ) This petition is directed against the order dated 5.11.2009 by 1st Additional Civil Judge Class-II, Satna in Civil Suit No.4-A/09 by which an application filed YOGENDRA KUMAR Vs. PAVAN KUMAR JAIN by the petitioners under section 151 of the Code of Civil Procedure was rejected. By the aforesaid application, petitioners prayed that the statement of plaintiff be not read in evidence. ( 2. ) Learned counsel for petitioners has drawn attention of the Court to rule 147(4) of M.P. Civil Court Rules and submitted that without certificate as provided in the rule, statement could not be read in evidence. Apart from this, witness left the Court without seeking permission of the Court so he ought to have been prosecuted by the trial Court as provided in order 16 rule 16 CPC. ( 3. ) To appreciate the aforesaid contention, we perused the impugned order. The facts of the case are that a suit was filed by the respondent Pavan Kumar Jain for eviction of the petitioners. Respondent Pavan Kumar appeared in the witness box. When his statement was going on, counsel of the petitioners asked a question whether he can depose after taking oath of his son in respect of certain facts. The witness annoyed with the question and by stating that he did not want to prosecute the case, left the Court. Because of this, his statement could not be completed. Thereafter, the petitioners moved an application under section 151 CPC for rejecting the statement of Pavan Kumar from the deposition which has been dealt with by the trial Court by the impugned order. Before the trial Court, plaintiff submitted reply to this application and stated that the question which was put by the counsel for the petitioners to take oath of son and to depose in the Court irritated and excited the witness resulting increase of high blood pressure and to save his life, he left the Court. He immediately consulted the doctor where he was treated. The explanation with medical certificate submitted by the witness was found reasonable by the trial Court and relying on the explanation, the trial Court rejected the application filed by the petitioners. ( 4. He immediately consulted the doctor where he was treated. The explanation with medical certificate submitted by the witness was found reasonable by the trial Court and relying on the explanation, the trial Court rejected the application filed by the petitioners. ( 4. ) Though learned counsel for petitioners relying on sub-rule 4 of rule 147 of the M.P. Civil Court Rules stated that such deposition cannot be read in evidence without a certificate as provided in the rules written by the judge. For ready reference, rule 147(4) is referred which reads thus:- (4) Each deposition should be signed (note merely initialled) by the presiding officer, who should add to his signature at least the initials indicating his official designation, so that the deposition may be complete in itself. He shall also sign a certificate at the foot of each deposition to the effect that it has been read over or interpreted to the witness, in the Judges presence. Note- The provisions of Order XVII, Rules 5 and 6, Civil Procedure Code, as regards the reading over the interpretation of evidence to witnesses in the presence of the Judge are frequently overlooked. These provisions of law should be strictly followed. ( 5. ) Aforesaid provision provides that the deposition should be signed by the presiding officer who should add to his signature a certificate at the foot of each deposition to the effect that it has been read over or interpreted to the witness in the judges presence. When the witness left the Court then there was no question of putting such certificate by the Court as witness was not available to hear and state the correctness of the statement. ( 6. ) No provision is brought to our notice by the petitioners that in such circumstance, entire statement can be rejected. When a witness was examined by the trial Court after oath, such evidence cannot be rejected ordinarily. The witness can be summoned for further cross examination. After his statement is complete, such certificate can now be put. The position could have been different when the witness could not appear in the witness box to complete the cross examination and his statement remains incomplete. In the present case because of the circumstances as stated by the plaintiff/respondent, witness left the Court and the explanation submitted by the witness was found satisfactory by the trial Court. The position could have been different when the witness could not appear in the witness box to complete the cross examination and his statement remains incomplete. In the present case because of the circumstances as stated by the plaintiff/respondent, witness left the Court and the explanation submitted by the witness was found satisfactory by the trial Court. In such circumstance, the trial Court rightly rejected the application in which no fault is found. This petition is found without merit and is dismissed with no order as to costs. Petition dismissed.