The necessity to examine a witness under Section 120 of the Evidence Act and the inherent powers of the Court to permit the examination of a proper witness.

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. 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 righ