Pradeep Khullar vs Padmawati Khullar and Another

S. Muralidhar, J

IA No. 20625 of 2011 (by Plaintiff u/o XVIII R. 3 and 3A CPC)

This is an application under Order XVIII Rule 3 and 3A of the Code of Civil Procedure, 1908 (CPC) filed by the Plaintiff for permission to the Plaintiff to file his affidavit by way of an examination-in-chief and to be cross-examined. The background to this application is that the aforementioned suit has been filed by the Plaintiff for mandatory and permanent injunction restraining the Defendants from interfering in the Plaintiff''s administration of the business of M/s. Shalimar Fruit Products at B-50, Lawrence Road Industrial Area, Delhi.

Inter alia, the following issues were framed on the basis of the pleadings of the parties on 10th July 2007:

Whether the alleged codicil dated 5.5.1986 was executed by late Shri Krishan Lal Khullar? OPP

If issue No. 1 is answered in favour of the plaintiff, in what manner are the rights of the parties under the Will dated 4.5.1986 affected by it? OPP

Whether the plaintiff is entitled to run and administer the business of M/s. Shalimar Fruit Products in terms of the Will and alleged codicil? OPP

Whether the rights conferred on defendant No. 1 under the Will dated 4.5.1986 give absolute rights to defendant No. 1 u/s 14(1) of the Hindu Succession Act? OPD-1

Relief.

The Court directed the parties to file their respective list of witnesses and additional documents within fifteen days. Further, the Plaintiff was directed to file the affidavits of examination-in-chief of his witnesses within six weeks. The evidence was directed to be recorded by the Joint Registrar (JR).

On 7th November 2007, the following order was passed by the JR:

07/11/2007

Present: Sh. A.K. Tiwari, counsel for plaintiff.

Sh. H.L. Tikku & Ms. Yashmeet Kaur, counsel for defendant No. 1

Sh. N.A. Khan, counsel for defendant no. 2.

CS(OS) 1294/05

PW1 recorded in chief and cross-examined partly by defendant no. 1. Remaining cross-examination deferred. Renotify for further cross-examination of PW 1 on 15/11/2007. (Date fixed before the Hon''ble Court is 17/12/2007).

Sd/-

Joint Registrar

It must be noticed at this stage that on 20th August 2007, the Plaintiff had filed the following list of witnesses:

Shri Pradeep Khullar.

Shri Brij Chopra.

Dr. Atul K. Luthra.

Shri D.C. Mathur.

Officials of DDA with record of B-50 Lawrence Road Industrial Area, Delhi.

Officials of Delhi High Court Bar Association with records of late Harbans Singh Mac Advocate and late P.R. Monga Advocate.

Officials of Andhra Bank.

Tilak Raj.

The Plaintiff did not examine himself as PW1. However, Mr. D.C. Mathur was examined as PW1. The examination of Mr. Mathur commenced on 7th November 2007, and concluded on 18th November 2008. Examination of PW2, Mr. Brij Chopra commenced on 20th January 2009, and concluded on 23rd August 2011.

The third Plaintiff''s witness, PW3 (Dr. Atul Luthra) tendered his affidavit by way of examination-in-chief on 1st November 2011 and his cross-examination concluded on 9th November 2011.

On 9th November 2011, there was a controversy raised on whether the Plaintiff could be permitted to examine himself as witness at that stage. The submissions of counsel for parties were recorded by the JR in the proceedings drawn up on that date which read as under:

CS(OS) No. 1294/2005

Counsel for the defendant no. 2 states that as per the procedure prescribed in CPC, plaintiff to examine him first as a witness unless the Court for reasons to be recorded permit him to be examined at a subsequent stage in the present case neither plaintiff has examined as a witness as per the plaintiff nor sought liberty of the court to examine at subsequent stage as and no such liberty granted to the plaintiff at the instance of Sr. counsel for the plaintiff and even no affidavit of plaintiff has been filed till date and the liberty should not given to the plaintiff, to adduce his evidence after the thread bare examination and cross examination of the witness to the codicil since it will seriously prejudice the case of defendant. Counsel for the plaintiff states that the present suit is injunction and not a suit under testimonial law where the veracity of the testamentary document executed by late Sh. K.L. Khullar have not been challenged by the plaintiff. At the outset, there was an understanding between counsel for the plaintiff and counsel for the defendant no. 1 that they would examine the attesting witness to the codicil which was challenged by the defendants it was mutually agreed to the plaintiff to submit to his statement in chief after the attesting witnesses have been cross examined hence, the plaintiff should be permitted to examine by way of affidavit plaintiff at this stage.

Even at that stage, the present application was not filed by the Plaintiff. When the matter again came up before the JR on 5th December 2011, the following order was passed:

CS (OS) 1294/2005

It is pointed out by Mr. H.L. Tiku, Sr. Advocate for defendant No. 1 that the statement was made before the Court on the last date of hearing that the examination on the witness other then (sic than'') plaintiff as agreed by way of an understanding between counsel for the plaintiff and learned Senior Advocate for defendant No. 1. Learned Senior Advocate states that there were no such understanding and in any case, learned Senior counsel for defendant No. 1 was not to advise counsel for the plaintiff to take steps as per law and there were no such understanding to give concession to plaintiff which is not available as per law.

In view of that, learned counsel for the plaintiff states that he be given some time to take steps and seeks ten days'' time.

It is only thereafter that the present application was filed seeking relief as noticed hereinbefore.

The application has been vehemently opposed by the Defendants on the ground that no sufficient grounds have been made out to seek the indulgence of the Court in terms of Order XVIII Rule 3 and 3A CPC to permit the Plaintiff to be examined as a witness at this stage.

Mr. A.K. Tiwari, counsel for the Plaintiff relied upon the decisions in Shri Subhas Chandra Agarwalla Vs. Smt. Golabi Devi Agarwalla, ; Ramasami Gounder and 3 others Vs. Muthayammal and another, ; Sanjay Narayanrao Barde and Another Vs. Sau. Vimal Keshaorao Bairam and Others, ; Smt. Shakuntala Devi Vs. Sh. Nathu Lal Jain and Another, ; Khadi Kissan Vs. Thubra Kissan and Another, Gurmail Chand Vs. Ashok Verma, Rameshwar Sharma Vs. Surju Prasad 1979 BBCJ 637 Pravesh Kumari and Others Vs. Rishi Prasad and Others, ; Nalajala Narasayya Vs. Nalajala Sitayya and others, and Amritsar Improvement Trust Vs. Ishri Devi 1979(2) All India Rent Control Journal 422 to urge that there was sufficient justification shown by the Plaintiff for seeking indulgence of the Court under Order XVIII Rule 3 and 3A CPC He submitted that the Plaintiffs evidence was not yet closed. According to him, the reason why the Plaintiff did not examine himself first, was that the three witnesses, who were examined, were witnesses to the Will and were to speak on that behalf. The Plaintiff was not going to speak about those documents. Consequently there was no need for the Plaintiff to examine himself at that stage. Counsel for the Plaintiff/Applicant further submitted that no prejudice would be caused to the Defendants if the Plaintiff is permitted to examine himself as a witness at this stage.

Mr. H.L. Tiku, learned Senior counsel, appearing for the Defendants, on the other hand, referred to the decisions in Ayyasami Gounder and others Vs. T.S. Palanisami Gounder, N.C. Kaladharan Vs. Kamaleswaran and Others, and Arya Vysya Samajam Vs. R. Murali and The Sub Registrar,

The Court finds that in the present case the Plaintiff has not made out any strong or sufficient ground for grant of permission to examine himself as a witness.

Order XVIII Rule 3 and 3A CPC reads as under:

Evidence where several issues. Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produce by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.

3-A. Party to appear before other witnesses. Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.

As pointed out by the Madras High Court in Ayyasamy Gounder v. T.S. Palanisami Gounder, the above provision was inserted in 1976 into the CPC to ensure that there is no miscarriage of justice. If there were genuine reasons for the Plaintiff not to examine himself as a witness, such permission could be granted. However, the said provision was not to be taken advantage of by a Plaintiff who wished to plug the holes in the evidence that emerged from the examination of the Plaintiff''s earlier witnesses. Even if this is not the reason why the Plaintiff is seeking to examine himself, in the present case, he has to, nevertheless, make out a strong case for deviating from that rule that the Plaintiff should examine himself first. No such strong reason has been adduced in the present case.

Further as has been pointed out by the Madras High Court in the aforementioned decision in Ayyasamy Gounder v. T.S. Palanisami Gounder, even if for some reason the Plaintiff was unable to examine himself first, his application under Order XVIII Rule 3 and 3A CPC should have been filed at the earliest point in time, i.e., even at the stage of commencement of examination of me Plaintiff''s witnesses. In other words, once the Plaintiff knows that he is not going to examine himself as a witness right at the beginning, he should forthwith apply to the Court under Order XVIII Rule 3 and 3A CPC.

In the present case, as already noticed hereinbefore, examination of the Plaintiffs witnesses commenced in 2007 and it was not till the end of 2011 itself that the present application was filed. There is no valid explanation why the Plaintiff waited for more than four years to move this application.

Sufficient time has already been wasted in this case. Numerous adjournments were granted for the Plaintiff''s witnesses to appear from time to time. Over a period of six years, only three Plaintiffs witnesses have been examined. Permitting the Plaintiff to examine himself at this stage will undoubtedly not be in the interests of justice, apart from the fact that it would prejudice the Defendants.

Consequently, the application is dismissed.

CS(OS) No. 1294 of 2005

List before the JR on 16th December 2013 for completion of remaining evidence. Considering that the suit has been pending for over eight years, the JR is requested to complete the recording of evidence within six months from the above date.