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In the High Court of Bombay at Aurangabad
S.S. SHINDE
Sau. Devkabai Chudaman Patil & Another
Versus
Santosh Supadu Patil & Another
Writ Petition No.4808 of 2012
Decided on : 23-01-2013
Though Rule 3-A of Order XVIII of Code is directory, even then rejection of application filed by defendants, old in age and also not keeping good health, for recording of their evidence unjustified. - In the facts of the present case, it is true that, no any evidence was placed on record by the present petitioners to show that, they are old aged persons and not keeping good health. The contentions of the counsel for the petitioners that, the plaintiffs have not specifically denied that the petitioners are not aged persons or not keeping good health and therefore, their application should have been allowed, cannot be accepted. The original plaintiffs, respondents herein have stated in their reply that, the application, is not supported by the pleadings or document.
It necessarily means that, an application filed by the original defendants seeking permission to examine their son Gopinath before the defendants examined themselves, on the ground that, they are old aged persons and not keeping good health, was not supported by any documentary evidence. It is the case of the petitioners themselves that, they are old aged persons and not keeping good health and therefore, it was for the petitioners i.e. original defendants, to place on record some documentary evidence showing that, they are not keeping good health.
In absence of such evidence on record, the trial Court was justified in observing that, the documentary evidence is not placed on record by the defendants to support the averments in the application, however, the trial Court should have kept in mind that, the provisions of Order XVIII, Rule 3-A of the Code of Civil Procedure are not mandatory and those are directory in nature. In appropriate cases like the case in hand, if the defendants are able to place on record that, they are not keeping good health, in that case, the trial Court can consider the prayer of the defendants that, their son Gopichand should be allowed to examine first before the defendants are examined.
Therefore, the ends of justice would meet, if the impugned order is quashed and set aside and the application is restored to its original file for fresh adjudication.
Key Points: - The judgment discusses that Order XVIII Rule 3A is directory and may be applicable to allow a defendant to examine a witness (their son) first, if they present documentary evidence of ill health. (!) (!) - It sets aside the trial court’s order rejecting Exhibit 48 and restores the application for fresh adjudication, directing the court to consider evidence of ill health and permit examination of the defendant’s witness first if appropriate. (!) (!) (!) - It emphasizes that the court may grant permission to defendants to examine themselves before other witnesses, though such permission should be obtained; the provision is not mandatory and can be applied flexibly. (!) (!) (!) - The decision references that the rights to lead evidence are not absolutely restricted and that the object of Rule 3A is to prevent misuse of sequencing in examination; the rule is considered directory. (!) (!) - The petition is disposed of with directions to place documentary evidence of ill health on record and to hear Exhibit 48 afresh within a set timeframe. (!) (!) (!)
Heard finally with the consent of the parties.
2. This writ petition takes exception to the judgment and order passed by the 2nd Joint Civil Judge, Junior Division, Dhule below Exhibit 48 in Regular Civil Suit No. 35 of 2010 on 2nd January, 2012.
3. The petitioners herein are the original defendants and the respondents herein are the original plaintiffs. The respondents herein filed Regular Civil Suit No.35 of 2010 in which the petitioners herein appeared after receipt of the summons and resisted the suit by filing written statement. The issues were framed on 8th August, 2011 by the trial Court.
4. The plaintiffs stepped into witness box, and examination and also cross examination of the plaintiffs was completed.
5. It is the case of the petitioners that, original defendants are old aged persons and also not keeping good health. Defendant No.1 is a lady, who is the owner of the property and defendant No.2 is her husband. It is the case of the petitioners that, they are residents of small village and proceedings are going on at Dhule. It is neither possible nor convenient for the defendants to appear before the Court personally. It is further case of the petitioners that, their son Gopichand is cultivating their land, as it is not possible for the defendants to cultivate the land due to old age and sickness. In the aforesaid factual scenario, the petitioners filed application at Exhibit 48 seeking permission of the trial Court to adduce evidence of their son Gopichand before they stepped in the witness box. It is mentioned in the application that, the petitioners i.e. defendants are old and sick persons and moreover, their son Gopichand, who is cultivating the land has personal knowledge of the facts of the case. Along with the application, claim affidavit of the witness Gopinath was also tendered.
6. It is the case of the petitioners that, original plaintiffs filed two lines say to the application at Exhibit 48. It was mentioned that, the application is illegal and that application seeking permission is not filed. Sickness and old age of the defendant was never disputed by the plaintiffs, however, the trial Court by order dated 2nd January, 2012 rejected the application at Exhibit 48 filed on behalf of the present petitioners. While rejecting the said application, the trial Court held that, no evidence is tendered in support of the contention about old age and ill health.
7. Learned Counsel appearing for the petitioners submits that, illness and sickness of both the defendants is not specifically denied by the plaintiffs and hence, there is no need to adduce independent evidence in respect of facts which are not denied by the other side. It is submitted that, the trial Court has lost sight of the fact that, the facts not denied specifically and deemed to be admitted and admitted facts need not be proved. It is submitted that, the trial Court should have appreciated that, there is no burden on the defendants to prove any of the issues and hence, no prejudice will be caused to the plaintiffs, in case the evidence of other witness is recorded prior to the evidence of the defendants. It is submitted that, the trial Court has lost sight of the fact that, it is pleaded in the application itself that even witness has personal knowledge of the case and that, he is cultivating the land and he is son of the defendants. Under such situation, there is no harm or prejudice to the plaintiffs in case permission as sought is granted. It is submitted that, the provisions of Order 18 Rule 3A of the Code of Civil Procedure are only directory in nature and same are not mandatory. The application of the Rule 3A of Order 18 of the Code of Civil Procedure will come into picture when the party himself enters the witness box. It is submitted that, reference to the provisions of Order 18 Rule 3 of the Code of Civil Procedure is not appropriate in the present case and the trial Court was not correct in relying upon the said provision. Learned
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