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2025 DIGILAW 591 (MP)

Vibhawna v. Anita

2025-09-16

ALOK AWASTHI

body2025
ORDER 1. By this petition preferred under Article 227 of the Constitution of India the petitioner/plaintiff has challenged the order dated 1.9.2025 passed by the 1st Civil Judge, Senior Division, Ratlam in RCS No.277/2018 whereby the application filed by the respondents under section 151 of CPC for not permitting the petitioner to record her deposition as plaintiff witness has been allowed. 2. The suit has been instituted by the plaintiff for specific performance of contract of the suit property. An application under the provisions of Order XVI rule 1 of CPC has been filed by the petitioner along with list of witnesses wherein the name of the petitioner and her husband were mentioned in item No.1 and 2, respectively. At the time of evidence the petitioner was ill therefore her statement was not recorded, however, her husband's evidence was recorded and when her health condition got improved, the petitioner appeared before the trial Court for evidence. At that time the respondent no.1 filed an application under section 151 of CPC for not permitting the petitioner to record her evidence on the basis of Section 120 of the Indian Evidence Act, which was allowed vide the impugned order. 3. Learned counsel for the petitioner submitted that trial Court has failed to appreciate the fact that no prejudice will said to be caused, if the proposed witness is permitted for tendering evidence. He also submitted that the trial Court has failed to consider the fact that evidence of witness is essentially required for proper adjudication of dispute and to determine the real controversy in between the parties. It is further submitted that the trial Court has allowed the application on the wrong interpretation that as per section 120 of the Indian Evidence Act, (hereinafter referred to as 'the Act') the evidence of the petitioner's husband has been recorded on the basis of power of attorney submitted by the petitioner in favour of her husband, therefore, there is no requirement of recording the statement of the petitioner again. However, section 120 of 'the Act' runs as under: 120. Parties to civil suit and their wives or husbands - Husband or wife of person under criminal trial. In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. However, section 120 of 'the Act' runs as under: 120. Parties to civil suit and their wives or husbands - Husband or wife of person under criminal trial. In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness. Hence counsel prayed for quashment of the impugned order and one last opportunity for the petitioner to record her evidence 4. Heard learned counsel for the petitioner and perused the record. 5. Section 120 of the Indian Evidence Act makes spouses competent witnesses for each other, it does not exempt the wife from testifying on matters that are exclusively within her personal knowledge. Therefore, it is incorrect to assume that a wife's testimony is not required simply because her husband, as her power of attorney (PoA), has already given evidence. The summary of the above section is that the recording of the husband's evidence does not automatically remove the requirement for the wife's testimony. Her evidence is still needed to establish any facts that only she can personally confirm. The trial Court has wrongly interpreted the aforesaid provisions. 6. Without entering into merits of the case and without issuing notice to the respondent(s) herein with a view to avoid the delay and considering the totality of the facts and circumstances of the case, this Court is of the considered view that one last opportunity to the petitioner to recorded her statement deserves to be granted. Accordingly, the impugned order dated 1.9.2025 is hereby set aside. 7. The trial Court is directed to fix a date for allowing the petitioner to record her statement. It is made clear that no further adjournment shall be granted to the petitioner/plaintiff in this regard and in case if the petitioner fails to appear before the trial Court on the date of evidence, the right to record evidence would stand closed automatically. 8. Accordingly, the petition stands allowed.