With respect, the ratio as laid down by the Court does not help the cause of the respondents but in fact helps the cause of the petitioners. What is observed by the Court is that it is not necessary for the party to file the affidavit of all the witnesses at one and the same time or day, and it should depend upon the number of witnesses and testimony of each of the witnesses as well as the discretion to be exercised by the Court in that regard. In view of this, it is clear that no party can in fact be directed to file affidavit of the witnesses at one and the same time because the party has a choice to decide as to number of witnesses to be examined in the Court. In view of this, there was no need for the learned Judge of the trial Court to have directed the defendants to file the affidavit of all witnesses, which they want to examine. The order as passed by the learned Civil Judge is, therefore, liable to be set aside and quashed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
WRIT PETITION NO.5203 OF 2008.
Kawadu s/o Latari Ramteke,
-VERSUS -
RESPONDENTS:
Suresh s/o Latari Ramteke,
Coram: C.L.PANGARKAR,J.
Dated : 21st APRIL, 2009.
Citation;
Rule. Rule is made returnable forthwith. Heard
1.
finally with consent of the parties.
This writ petition has been filed against the order
2.
passed by the Civil Judge (Sr.Dn.) Chandrapur on an
application (Exh.100).
3.
The facts are as follows -
The respondents/plaintiffs have instituted a suit for
partition
and
separate
possession.
The
declaration,
petitioners/defendants had filed a list of witnesses in the
said proceeding by way of defence. The evidence of the
plaintiffs is recorded and they have been cross-examined by
the defendants. The defendant's affidavit has been filed on
The
plaintiffs
moved
4.
record, but has not as yet been examined.
an
application
(Exh.100)
before the court praying that it should direct the defendants
to file affidavit of all the witnesses on record at a time. This
application was opposed by the defendants. In spite of the
opposition of the defendants, the learned judge of the trial
court granted the application and the defendants feel
aggrieved by the same.
5.
I have heard the learned counsel for the petitioners
and the respondents.
Learned
counsel
for
the petitioners/defendants
6.
submits that there is nothing in the Rule 4 of Order 18 of
C.P.C. which permits a court to direct any party to file the
affidavit of all the witnesses at a time. He submits that it is
a well-known fact that a party has right to decide at the
eleventh hour whether it should or should not examine any
particular witness in the court although the said witness
may have been cited as a witness and his name may appear
in the list of witnesses.
He submits that at the eleventh
hour, the defendant may find the evidence of one witness,
which he has examined, sufficient to rebut the case of the
plaintiff and there is no need to examine any more
witnesses. He submits that, therefore, there was no need in
fact for the trial court to have directed the defendants to file
the affidavit of all the witnesses.
He submits that the
defendant has a choice to examine or not to examine any
witness although names of such witnesses appear in the list
of witnesses. This proposition cannot at all be disputed.
7.
Smt.Satpute, learned counsel for the respondents
submits that discretion is with the learned judge of the trial
court and discretion has been rightly used by him and this
court should not, therefore, interfere with the discretion.
She relied upon the decision reported in 2003(3) Mh.L.J.
327 (F.D.C. Ltd. Mumbai ..vs.. Federation of Medical
representatives Association India and ors.), wherein
this court has observed as follows -
“18. There is no doubt that the Rule 4 on the face
of it nowhere speaks of the time or the state at
which the affidavit of examination-in-chief can be
filed. Does it mean that such affidavit of a witness
can be filed few minutes before the cross-
examination of such witness begins?
Certainly
not, as it can invariably cause great prejudice to
the opposite party who has to cross-examine such
deponent. In all fairness, therefore, the copies of
such affidavits will have to be furnished to the
opposite party well in advance.
It may not be
however, appropriate for this court to fix a time
frame programme in general for furnishing such
copies of the affidavits to the opposite party. It
will depend on the facts and circumstances of
each case and the trial court in its discretion will
have to fix the time for giving such copies in
advance.
However, under no circumstances, on
account of failure to give advance copy of the
affidavit, the parties shall be entitled to seek
adjournment of the hearing of the suit.
In case
there is failure to give advance copy of the
affidavit in examination-in-chief to
the opposite
party and grievance is made in that regard by the
opposite party, certainly the Court can order
examination-in-chief
recorded
in
of
open
such
court
witness
or
to
before
be
the
Commissioner as the case maybe, ignoring or
discarding the affidavit of such witness. However,
it should depend upon judicious exercise of
discretion by the Court in that regard and
depending upon facts and circumstances in each
cases.
It is also to be noted that it is not
necessary for the party to file affidavit of all the
witnesses at one and the same time or day. This
again
would
depend
upon
the
number
of
witnesses and nature of testimony of each of the
as
well
as
the
discretion
to
be
witnesses
exercised by the Court in that regard. It cannot
be disputed that question of filing of affidavit of
witnesses
by
the
opposite
party
cannot
be
ordered unless the first party concludes its
With respect, the ratio as laid down by the court
8.
evidence.”
does not help the cause of the respondents but in fact helps
the cause of the petitioners. What is observed by the court
is that it is not necessary for the party to file the affidavit of
all the witnesses at one and the same time or day, and it
should depend upon the number of witnesses and testimony
of each of the witnesses as well as the discretion to be
exercised by the court in that regard. In view of this, it is
clear that no party can in fact be directed to file affidavit of
the witnesses at one and the same time because the party
has a choice to decide as to number of witnesses to be
examined in the court. In view of this, there was no need for
the learned judge of the trial court to have directed the
defendants to file the affidavit of all witnesses, which they
want to examine. The order as passed by the learned civil
judge is, therefore, liable to be set aside and quashed. In
view of this, the writ petition is allowed. The order passed by
The
the learned judge of the trial court is set aside.
defendants are at liberty to file the affidavit of the witnesses
as they may choose to examine at the time of trial. It is,
however, clear that it is always desirable that the parties
submit the affidavit at least two days in advance before the
witness is examined in the court.
Rule made absolute.
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