IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA ON THE

5th OF FEBRUARY, 2024 MISCELLANEOU PETITION No. 2013 of 2023 BETWEEN:-

SHRI GIRDHARILAL GUPTA S/O SHRI PHOOLCHAND GUPTA, AGED ABOUT 58 YEARS, OCCUPATION: BUSINESS R/O RAMLEELA MAIDAN, TAHSIL AND DISTRICT BANDA (U.P.) THROUGH ITS POWER OF ATTORNEY HOLDER SHRI RAJENDRA SINGH S/O LATE SHRI SARDAR BUTA SINGH AGED ABOUT 65 YEARS R/O FLAT NO. 1 SAKSHAM HEIGHTS BIRLA ROAD SATNA M.P. (UTTAR PRADESH)

.....PETITIONER (BY SHRI RAJESH MAINDIRETTA AND MS. UDITA MAINDIRETTA -

ADVOCATES )

AND

1. SMT. PUSHPA SINGH TOMAR W/O LATE SHRI BALVEER SINGH TOMAR OCCUPATION: HOUSE WIFE R/O NEAR SEMARIYA CHOWK, KULGAWA, TEHSIL RAGHURAJNAGAR DISTRICT SATNA (MADHYA PRADESH)

2. STATE OF MADHYA PRADESH, THROUGH COLLECTOR, SATNA DISTRICT SATNA (MADHYA PRADESH)

3. MANGLAESHWAR SINGH S/O SHRI SAMRESH SINGH, AGED ABOUT 55 YEARS, R/O PREM VIHAR COLONY, TEHSIL RAGHURAJ NAGAR, DISTRICT SATNA (MADHYA PRADESH)

4. ANIL KUMAR TAMRAKAR S/O PANCHAM LAL TAMRAKAR, AGED ABOUT 42 YEARS, R/O CHANNAKAYA PURI COLONY, TEHSIL RAGHURAJ NAGAR DISTRICT SATNA (MADHYA PRADESH)

.....RESPONDENTS (SHRI GAJENDRA PARASHAR – PANEL LAWYER FOR RESPONDENT NO.2/STATE, SHRI AKHILESH KUMAR JAIN – ADVOCATE FOR RESPONDENT NO.4.)

……………………………………………………………………………………………

"Reserved on : 08.01.2024" "Pronounced on : 05.02.2024"

This petition having been heard and reserved for judgment, coming on for pronouncement this day, the court passed the following:

ORDER

This Petition under Article 227 of Constitution of India has been filed against order dated 23.03.2023 passed by IX Civil Judge, Junior Division, Satna (M.P.) in RCSA No.154/2014 by which an application filed by petitioner for his examination as a witness has been rejected.

2. It is submitted by counsel for petitioner that earlier, the trial Court had directed the petitioner to keep his witness, namely; Shri M.M. Kakkad present before the trial Court for his examination with a rider that in case, if Shri M.M. Kakkad remains absent, then right of petitioner to examine him shall be closed and matter was fixed for 23.03.2023. On 23.03.2023, witness of petitioner Shri M.M. Kakkad did not appear and accordingly, right of petitioner to examine him was closed. It is submitted by counsel for petitioner that petitioner is not aggrieved by the closer of right to examine Shri M.M. Kakad but petitioner is aggrieved by the rejection of an application, I.A. No.6/2023, by which permission was sought to examine Girdharilal/defendant No.1. It is the case of petitioner that defendant No.1 had appointed Rajendra Singh as his Power of Attorney and even written statement was filed, through his Power of Attorney. However, defendant No.1 is a party to the sale deed as purchaser and the transaction took place with defendant No.1 and accordingly, to prove the sale deed, recording of evidence of defendant No.1 Girdharilal is essential and thus, it was prayed that defendant No.1 Girdharilal may be permitted to be examined. The said application was objected by plaintiff on the ground that Girdharilal should have examined himself as witness but in his place, he had examined Power of Attorney holder and Jafar Khan. As per the law, the litigating party must examine himself and now defendant No.1 in order to overcome the lapses, which have figured during cross examination of witnesses, has filed the present application. The trial Court has rejected the application on the ground that as per the provisions of Order 18 Rule 2 (1) of CPC, it is required that first of all the parties to the suit must get themselves examined and if he wants to examine any witness ahead of him, then he has to seek permission from the Court. In the present case, defendant No.1 instead of examining himself had got his witnesses, namely Rajendra Singh and Jafar Khan examined and now he wants to appear as a witness and accordingly, in the light of Order 18 Rule 2(1) of CPC, permission cannot be granted.

3. Heard the lear