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2013 DIGILAW 397 (CAL)

Sanat Sardar v. Lakshmi Kanta Sardar

2013-07-02

HARISH TANDON

body2013
JUDGMENT HARISH TANDON, J. The judgment of the Court was as follows:- The Order dated September 24, 2012 passed by Civil Judge (Junior Division), Howrah in Title Suit No.1 of 2005 by which an application filed by the plaintiffs/opposite parties for rejection of the affidavit as to examination-in-chief of DW-2 is allowed. 2. The suit instituted by the plaintiffs/opposite parties pertains to the declaration of their title by way of inheritance from their father who acquired the title in respect of the suit premises by dint of purchase. It further appears that the dispute relates to the nature of the document whether the same is the loan in substance or an absolute sale. 3. The parties advanced their rival defences and the Court framed the issues to be decided in the said suit. Admittedly, the evidence of the plaintiffs/opposite parties is complete and one witness on behalf of the defendants is examined and discharged. It is undisputed that one Anil Sardar, the petitioner NO.2 herein who is one of the defendant in the said suit, deposed as DW-1. The defendant NO.8 submitted the affidavit as to examination-in-chief but the plaintiffs/opposite parties objected for his deposition. An application for rejecting the affidavit as to examination-inchief submitted by the said defendant NO.8 as DW 2 was filed praying for the rejection of the said examination-in-chief, on the pretext, that the earlier witness (DW-1) already deposed for himself and the other defendants, and, therefore, the said witness should not be allowed to depose as it would amount to the multiplicity of the same evidence and would also waste the valuable time of the Court. The said application was opposed by the defendants/petitioners as the DW-1 being the defendant No.2 deposed for himself and the other co-sharers but did not depose for defendant Nos. 6 to 10 who have their independent, right, title and interest. The trial Court allowed the• said application by making a categorical finding that once a joint written statement is filed by all the defendants. One witness for and on behalf of the defendant is competent. It is further observed that to avoid the repetition of the evidence, the said witness should not be allowed to adduce evidence. 4. The copies of the affidavit as to examination-in-chief filed by the DW- 1 and DW -2 are annexed to these revisional applications. One witness for and on behalf of the defendant is competent. It is further observed that to avoid the repetition of the evidence, the said witness should not be allowed to adduce evidence. 4. The copies of the affidavit as to examination-in-chief filed by the DW- 1 and DW -2 are annexed to these revisional applications. On looking at the affidavit filed by the DW- 1, the very first Paragraph thereof says that he being one of the defendants is deposing for self and as well as for his other co-sharers. The second Paragraph proceeds with the statement that the predecessor-in-interest of the plaintiff/opposite party namely Sashi Bhusan Sardar since deceased transferred the two and half cottahs of land to the predecessor-in-interest of the defendant Nos. 1 to 5 by executing and registering the deed of sale dated December 21, 1935. The affidavit submitted by the defendant No. 8 (DW-2) says that the predecessor-in-interest of the defendant Nos. 6 to 10 namely Kalipada Sardar, Lalmohan Sardar and Rampada Sardar had interest to the extent of 3 sataks of land in the suit dag and, therefore, they have acquired the title by way of law of succession on the death of the said recorded owner. 5. The comparative analysis of both the affidavits leaves no room for doubt that both the sets of defendants although, they filed the joint written statement asserting their rights on independent, separate and distinct facts. 6. The learned Advocate of the petitioner in assailing the impugned order submits that there is no provision under the Code of Civil Procedure which prohibits the party to the suit from adducing the evidence. 7. Per contra, the learned Advocate appearing for the opposite party submits that from the meaningful reading of both the affidavits, it could be gathered that both are the replicas of each other. He audaciously submits that the affidavit filed by the DW-2 is filed to take away the advantageous of the plaintiffs/opposite parties in the cross-examination of the DW-1. 8. The proceeding initiated before the Civil Court is regulated by the Code of Civil Procedure which provides the full mechanism. Order 16 Rule 9 of the Code provides that the party shall present in Court a list of witnesses whom they proposed to call either to give evidence or to produce documents. 8. The proceeding initiated before the Civil Court is regulated by the Code of Civil Procedure which provides the full mechanism. Order 16 Rule 9 of the Code provides that the party shall present in Court a list of witnesses whom they proposed to call either to give evidence or to produce documents. By virtue of the Code of Civil Procedure (Amendment) Act 104 of 1976, Rule 1A of Order 16 was introduced which provides that any party to the suit may without applying for summon under Rule 1 bring any witness to give evidence or to produce documents subject, however, the Court may for reasons to be recorded permit the party for the same. Rule 7 thereof further provides that the Court may allow any person to give evidence or to produce any document then and there in his position or power. Rule 18 Sub-rule 2 of the Code requires the party having right to begin to state his case and produce evidence in support of the issues which is bound to prove and, thereafter, the other party is required to follow the same procedure. Rule 3A of Order 18 creates some restrictions where the party who himself wishes to appear as a witness must do so before other witness on his behalf has been examined, unless the Court for the reasons recorded permits him to appear as his own witness at a latter stage. However, Sub-rule 1 of Rule 4 of Order 18 provides that the examination-in-chief of a witness shall be in the form of an affidavit and a copy thereof must have to be served/supplied to the opposite party. The Sub-rules thereof postulate that the cross-examination and re-examination shall be taken either by the Court or by the Commissioners appointed by it. 9. On combined reading of the aforesaid provisions, the parties shall file a list of witnesses but may be allowed to bring any witnesses not included in the said list subject to the satisfaction of the Court by recording the reasons therefor. The examination-in-chief shall be filed in the form of an affidavit on supplying the copy thereof to the other party and the said witness shall be subjected for the cross-examination and re-examination. The examination-in-chief shall be filed in the form of an affidavit on supplying the copy thereof to the other party and the said witness shall be subjected for the cross-examination and re-examination. The embargo created under Order 18 Rule 3A of the Code to the extent that the party wishes to cite the other witness than himself may do so subject to the leave of the Court. Whether the said provision is mandatory or directory is not the subject matter before this Court and, therefore, this Court does not make any observations thereupon. 10. The cumulative effect of the aforesaid provisions does not lead to a proposition that where there are several defendants/plaintiffs, only one witness on their behalf should be allowed to adduce evidence. Each case is to be decided on the facts of that case and there cannot be a straight jacket formula to be formulated for such purposes. In the present case, although, a common written statement is filed by the defendants but it appears, there are two sets of defendants who are asserting their rights on independent, separate and distinct facts. The affidavit filed by the DW-1 categorically reflects that his deposing for himself and on behalf of the other co-sharers namely defendant Nos.1 to 5. On the other hand, the affidavit of the defendant No.8 clearly stipulates that he is deposing for himself and on behalf of the other co-sharers namely defendant Nos. 6 to 10. The Trial Court should not have been swayed by mere fact that a joint written statement was filed by the defendants without considering the nature of the defence taken therein. Recourse can be have to the provisions of Rule 3 of Order 1 of the Code which provides that all persons may be joined in one suit as defendants where any right to relief in respect of or arising out of, the same act or transaction or series of acts of transactions is alleged to exist against such person, whether jointly, severally or in the alternative. Therefore, there is no impediment on the part of more than one defendant to adduce evidence in a suit of such nature as in the present case. 11. This Court thus finds that the other impugned suffers from illegality and infirmity and cannot be sustained. The order impugned is thus set aside. 12. The revisional application is allowed. 13. Therefore, there is no impediment on the part of more than one defendant to adduce evidence in a suit of such nature as in the present case. 11. This Court thus finds that the other impugned suffers from illegality and infirmity and cannot be sustained. The order impugned is thus set aside. 12. The revisional application is allowed. 13. The Trial Court is requested the plaintiffs/opposite parties to fix up a date for cross-examination of the DW-2 and would make all endeavour that the cross-examination is completed at an earliest and, thereafter, shall proceed to decide the suit. In the event, no other witness is cited by the defendants to disposition of the suit as expeditiously as possible without granting unnecessary adjournments. 14. However, there shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.