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IN THE HIGH COURT OF MADHYA PRADESH
Dwarka Dhish Bansal, J.
Sai Pooja Education Societythrough Its Secretary Ashish Saraph & Ors. – Appellants
Versus
Pooja Yadav – Respondent
Misc. Petition No. 2755 of 2022
Decided On : 01-07-2022
CPC - Affidavits - Right to file affidavits of other witnesses
Fact of the Case:
The petition challenges the closure of the right of plaintiffs to file affidavits of other witnesses due to non-filing of all affidavits on the same date as ordered by the court.
Finding of the Court:
The court found that there is no provision in the CPC making it mandatory to file affidavits of all witnesses on the same date. The court also noted that the closure of the right to file affidavits before the cross-examination of the plaintiff was an illegality.
Issues: The main issue was the closure of the right of plaintiffs to file affidavits of other witnesses due to non-compliance with the order to file all affidavits on the same date.
Ratio Decidendi: The court relied on the absence of a specific provision in the CPC mandating the filing of all affidavits on the same date and also noted the illegality in closing the right to file affidavits before the cross-examination of the plaintiff.
Final Decision: The impugned order was set aside, and the trial court was directed to take the affidavit of the witness on record and allow the plaintiffs to adduce other evidence before the closure of their evidence.
ORDER
1. Heard on admission.
2. This Misc. Petition has been filed challenging the order dated 13.06.2022 (Annexure P-3) passed by Ilnd District Judge, Jabalpur whereby right of plaintiffs to file affidavits of other witnesses was closed for want of filing of all the affidavits under Order 18 Rule 4 CPC on the same and one date i.e. 13.06.2022.
3. Learned counsel for the petitioners submits that there is no provision in the CPC, specially under Order 18 Rule 4 CPC, which makes mandatory for filing affidavits of all the witnesses on one date. He submits that because crossexamination of the plaintiff-Ritu Yadav was not started by the defendant No.1 and even the learned court did not fix the case for cross-examination of the said witness, the plaintiffs submitted affidavit of other witness on the next date i.e. 20.06.2022, but the same was refused in the light of the order dated 13.06.2022 and by this order first time listed the case for cross-examination of the plaintiff-Ritu Yadav. Learned counsel for the petitioners submits that Order 18 Rule 4 CPC does not provide that affidavits of all the witnesses should be filed on one and same date.
4. The contention of learned counsel for the petitioners appears to be correct in the light of order passed by the Coordinate Bench of this Court in the case of Laxman Singh and others vs. State of M.P. and others reported in 2007 (1) MPWN 83. Further, in my opinion, even without closure of evidence of plaintiff-Ritu Yadav, learned court below has committed illegality in closing right of plaintiffs to file affidavits of other witnesses vide order dated 13.06.2022.
5. From bare perusal of order dated 20.06.2022 it is clear that learned court has fixed the case first time for cross-examination of plaintiff witness-Ritu Yadav for 06.07.2022, therefore, there was no occasion to close right of other witnesses of the plaintiffs in advance. Accordingly, the impugned order is liable to be and is hereby set aside.
6. Learned trial court is directed to take the affidavit of witness Ashish Saraf on record and the plaintiffs shall be free to adduce other evidence also before closure of their evidence.
7. With the aforesaid observations, the petition is allowed and disposed of.
The disputes between the parties should be disposed of on merits rather than on petty technical issues.
The court emphasized that the closure of evidence should not be unduly harsh, especially when the delay was not intentional.
The right to lead evidence is pivotal to a fair trial and partakes of the character of natural justice and fair play. The recall of a witness under Order XVIII Rule 17 should be for clarifying any do....
A party must demonstrate diligence in presenting evidence, but courts may grant additional opportunities to file evidence in the interest of justice, subject to conditions such as the payment of cost....
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