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2018 DIGILAW 2357 (JHR)

Chhaya Bhandari, W/o Shankar Bhandari v. Raju Dhibar, S/o Fakir Dhibar

2018-10-25

SHREE CHANDRASHEKHAR

body2018
JUDGEMENT : The petitioner, who is the plaintiff in Title Suit No.49 of 2011, is aggrieved of order dated 19.04.2017 by which her application for taking her examination-in-chief on record has been rejected. 2. Plea urged on behalf of the petitioner is that by refusing permission to her to examine herself in the suit the trial Judge has failed to exercise a jurisdiction which is legally vested in it under Order-XVIII, more particularly, Rule 16 and 17 CPC. 3. Title Suit No.49 of 2011 has been instituted for a decree for declaration of the plaintiff’s right of pre-emption over schedule-B land and for a decree directing the defendant nos.4 and 5 to execute a sale-deed in favour of the plaintiff transferring schedule-B land to her. The plaintiff has claimed that she has purchased a piece of land comprised under Khata No.30 (new Khata No.478) within plot no.1565, area about 5 ½ decimals from respondent no.1 through a registered sale-deed dated 08.08.2006 and she has been paying rent to the State of Jharkhand after mutation in respect of the suit land in her name. Further case setup by the plaintiff is that the respondent no.1 agreed to sell the adjacent land to her which is described under schedule-B, however, in the meantime, on 24.05.2010 she found that the defendant nos. 4 and 5 have purchased schedule-B land from the defendant nos.1 and 3 for a consideration of Rs.3 Lacs. During the trial, the plaintiff proposed to examine herself as PW-1 and she filed her examination-in-chief on 13.02.2014. On her application a commission was appointed for her cross-examination, however, due to her illness she could not appear before the Pleader-Commissioner for her cross-examination and accordingly a report was transmitted to the court concerned. By an order dated 12.05.2014, the plaintiff’s examination-in-chief was expunged from the records and thereafter she has produced two other witnesses. Application for recall of order dated 12.05.2014 has been dismissed in default by an order dated 15.05.2015 and her application dated 06.10.2016 for taking her examination-in-chief on record has been declined by the impugned order dated 19.04.2017. 4. Mr. Naresh Pd. Application for recall of order dated 12.05.2014 has been dismissed in default by an order dated 15.05.2015 and her application dated 06.10.2016 for taking her examination-in-chief on record has been declined by the impugned order dated 19.04.2017. 4. Mr. Naresh Pd. Thakur, the learned counsel for the respondent supporting the impugned order submits that sufficient opportunities were granted to the plaintiff to lead her evidence and in any case the court has no power to take examination-in-chief of a witness whose evidence has previously been expunged from the records. 5. The plaintiff is the most material witness in the suit. She is the one who claims that the defendant no.1 had agreed to sell schedule-B land to her. Her examination-in-chief has been expunged on 12.05.2014, in the absence of her counsel. This order reflects that when the matter was called out no one had appeared for the plaintiff. The petitioner has taken a plea that on account of her illness she could not offer herself for cross-examination on 13.02.2014. In absence of her counsel on 12.05.2014, obviously, this fact could not be brought to the notice of the court. Her application dated 22.12.2014 for recall of order dated 12.05.2014 has again been dismissed in the absence of her counsel. At this stage, it needs to be recoded that the procedure adopted by the trial Judge was definitely not proper. An application which was filed on 22.12.2014, obviously, in absence of the plaintiff’s counsel could not have been pressed and, thus, dismissal of this application is apparently improper. 6. In so far as, powers of the court to summon a witness for his evidence in a suit are concerned, procedure laid down under Order-XVI CPC would indicate that the court has ample powers to seek attendance of a witness and in the process may impose cost as well as order attachment of the properties of a witness so summoned. There may be several reasons for non-appearance of a witness when the suit is fixed for hearing, for example, illness of a witness. There may be a situation in which a witness is deliberately withheld or at the instance of an interested party the witness is evading to give evidence. There may be several reasons for non-appearance of a witness when the suit is fixed for hearing, for example, illness of a witness. There may be a situation in which a witness is deliberately withheld or at the instance of an interested party the witness is evading to give evidence. Atleast in a situation which has been projected by the plaintiff in the present proceeding, that is, non-appearance of a witness on account of his illness, the court must exercise its powers to provide an opportunity to a party to lead evidence. After all purpose of the trial is to unearth the truth. The petitioner who claims herself a material witness should have been granted an opportunity to examine herself in the suit. In so far as, the alleged contradiction in the examination-in-chief of the plaintiff is concerned, in my opinion, once a right of cross-examination is available to the defendant plea of such inconsistency must be ignored. 7. Viewed thus, and for the reasons indicated hereinabove, the impugned order dated 19.04.2017 is set-aside. The examination-in-chief dated 06.10.2016 filed by the plaintiff shall be taken on record. The trial Judge shall fix a convenient date, within four weeks, for cross-examination of the plaintiff. 8. The writ petition stands allowed, in the aforesaid terms.