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2017 DIGILAW 1654 (ALL)

MEGH SINGH v. DISTRICT JUDGE, HAPUR

2017-07-14

SUNEET KUMAR

body2017
JUDGMENT : Suneet Kumar, J. Petitioner/defendant is assailing the order dated 20 February 2017 passed by District Judge, Hapur, in Civil Revision No. 50/2016, arising from an order dated 29 August 2016 passed by the trail Court, whereby, application for examining the husband of the respondent/plaintiff has been allowed. 2. The facts, briefly stated, is that the respondent/plaintiff instituted a suit for permanent injunction in respect of the suit property alleged to have been purchased by a registered sale-deed. Upon framing issues, rival parties led their evidence. The daughter of the respondent appeared as a witness on behalf of the respondents. Thereafter, an application (81Ga), bringing certified copy of the sale-deed, power of attorney and other documents was moved. Another application (83Ga) was moved by the respondent for examining her husband, in view of section 120 of the Indian Evidence Act, 1872 (Evidence Act). The applications were contested by the petitioner, however, the trial court allowed the application; in revision, the order of the trial court was affirmed. The orders and under challenge. 3. Learned counsel for the petitioner would confine his argument to application (83Ga) contending that at the final stage of argument an application to examine the husband of the respondent could not have been allowed. The application was filed to fill up the lacune in the evidence, therefore, was not maintainable. 4. The court below in the impugned order would note that the case set up by the respondent/plaintiff was that the property was purchased by a deed of conveyance (sale-deed) which was disputed by the contesting petitioner contending that it was a forged document. Two witnesses and her daughter was examined on behalf of the respondents, thereafter, it was realized that in view of Section 120, the evidence of the daughter would not be admissible in law to prove the sale-deed, therefore, an application was moved that the husband of the respondent be summoned and examined. The court below allowed the application accepting the contention of the respondent that the husband could not be produced as he was not well and in any case since the husband is alive he would be the material witness in the case and not the daughter. 5. The court below allowed the application accepting the contention of the respondent that the husband could not be produced as he was not well and in any case since the husband is alive he would be the material witness in the case and not the daughter. 5. Learned counsel for the petitioner would submit : (i) that after amendment of Order 18 of the Code of Civil Procedure (CPC) there is no provision for examination/recall of a witness at the stage of final hearing; (ii) that the application was moved under Section 120 of the Evidence Act and not under section 151 CPC, therefore, was not maintainable. 6. The petition is being decided without issuing notice to the contesting respondents in view of the order proposed to be passed. 7. The respondent instituted a suit for permanent injunction against the petitioner in respect of the suit property which she claims to have purchased by a sale-deed. Petitioner contested by filing written statement. Upon issues being framed parties led their evidence. At the stage of arguments, respondents filed an application to examine her husband in view of Section 120 of the Evidence Act. The application was contested by the petitioner, however, the courts below allowed the application by the impugned order. 8. Order 18 provides for hearing of the suit and examination of witnesses. The right to begin follows from the rules of evidence. Section 101 to 114 of the Evidence Act, deal with burden of proof. Section 102 provides that the burden of proof lies on that party who would fail if no evidence at all were given on either side. Accordingly, as a general rule, the plaintiff has to prove his claim and, therefore, he has right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either on point of law (e.g. res judicata, limitation etc.) or on some additional facts alleged by him, the plaintiff is not entitled to any relief. In that case, the defendant has right to begin. 9. The party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. The other party shall then state his case and produce his evidence, if any, and may then address the court generally on the whole case. 9. The party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. The other party shall then state his case and produce his evidence, if any, and may then address the court generally on the whole case. The party beginning may then reply generally on the whole case. 10. Although the provisions of Sub-Rule (4) of Rule 2 of Order 18 are deleted, the effect of such deletion cannot be construed to abridge the inherent powers of the Court. The interest of justice cannot be sacrificed merely on the question of delay in presenting the application for examination of witness. Sub-Rule (1) of Rule 2 refers to the 'case' as has already been put forward. 'Stating the case' means giving the general outlines of the case and indicating in a general manner the evidence by which the case is proposed to be proved. The right to give evidence is guaranteed to both the plaintiff and the defendant. It is not the duty of the Court to determine which witnesses shall be examined. 11. In my considered opinion the power under section 151 CPC can be exercised, despite deletion of Sub Rule (4) of Rule 2 of Order 18 if ends of justice so warrant the Court can exercise its discretion to permit the proper witness. 12. In the facts of the case, in a suit for permanent injunction, the respondent got examined her daughter (PW1) on behalf of herself (plaintiff) as she was not in sound mental or physical health. In the final stage of the suit respondent presented an application contending that the evidence of her daughter would not be admissible in view of section 120 of the Evidence Act. She (plaintiff) not being in a position due to her ill health, to depose before the court as witness, a request was made to examine her husband. 13. It was specifically pleaded that she could not get herself and her husband examined due to deteriorating health, therefore, she got her daughter examined. Chapter IX of the Evidence Act deals with witnesses. 13. It was specifically pleaded that she could not get herself and her husband examined due to deteriorating health, therefore, she got her daughter examined. Chapter IX of the Evidence Act deals with witnesses. Section 118 provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, inter alia, due to extreme disease whether of body or mind. Section 120 presupposes that in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. The Section presupposes that the knowledge of the husband is also that of the wife and vice versa. 14. The plea of the learned counsel for the petitioner that the application was presented at the belated stage to fill the lacune in evidence cannot be accepted. It is not a case of recall of a witness under Order 18 who has been examined. PW1 (daughter) was not competent to depose on behalf of the mother when the husband of the respondent is alive, and in view of Section 120 of the Evidence Act husband can depose on behalf of the plaintiff wife. The courts below accepted the plea of the respondent that the husband of the respondent could not be examined due to his falling health, further, the respondent was not in a position to depose due to severe illness. In the circumstances, daughter appeared as a witness on her behalf, which in view of Section 120 of the Evidence Act was not admissible. 15. In my considered opinion the courts below were justified in allowing the application. 16. The learned counsel for the petitioner failed to point out any illegality, infirmity or jurisdictional error in the impugned order. 17. The writ petition being devoid of merit is, accordingly, dismissed.