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Lajjaram Vs. Khubiram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 224 of 1967
Judge
Reported inAIR1969Raj9
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 18, Rule 2(4)
AppellantLajjaram
RespondentKhubiram
Appellant Advocate J.S. Saluja, Adv.
Respondent Advocate R.P. Goyal, Adv.
DispositionRevision allowed
Cases ReferredKeshardeo v. Radha Kishan
Excerpt:
.....the present case since no objection was raised on behalf of the defendant and the court actually recorded the statement of lajjaram, it may very well be presumed that the court impliedly granted permission to lajjaram to appear after jyoti prasad had been examined. he has clearly committed an error of procedure whereby the statement of lajjaram which was admissible in evidence has been wrongly excluded......be observed that only two witnesses were examined by the plaintiff in support of his case, p. w. 1 jyoti prasad and p. w. 2 lajjaram (plaintiff).3. learned counsel for the petitioner has urged that the learned senior civil judge, dholpur acted illegally and with material irregularity in exercise of his jurisdiction in holding that the statement of the plaintiff was inadmissible. it may be observed that the issues were framed on 17-9-1965, after some adjournments the case was fixed for recording the plaintiff's evidence on 16-3-1966 on which date two witnesses viz. jyoti prasad (p. w. 1) and lalia ram (p. w. 2) were examined on behalf of the plaintiff. it appears from the order sheet of the trial court of 16th march, 1966 that the statement of jyoti prasad was marked as p. w. 1 and that.....
Judgment:
ORDER

C.M. Lodha, J.

1. This revision application has been filed by the plaintiff Lajjaram whose suit for recovery of a sum of Rs. 572/- was decreed by the learned Munsiff, Dholpur, but on appeal by the defendant was dismissed by the learned Senior Civil Judge, Dholpur.

2. The plaintiff-petitioner filed the suit for recovery of Rs. 400/- as principal and Rs. 172/- as interest on the basis of a bond dated 13th October, 1961. The defendant denied the execution of the bond and also taking of any loan from the plaintiff on its basis. After framing issues the trial court recorded the evidence of the parties and decreed the plaintiff's suit. On appeal filed by the defendant, the learned Senior Civil Judge, Dholpur came to the conclusion that the statement of the plaintiff Lajjaram (P. W. 2) could not be taken into consideration as it had been recorded in contravention of the provisions of Order 18, Rule 2(4) of the Civil Procedure Code. Thus having excluded the statement of the plaintiff Lajjaram from consideration, on the rest of the evidence the learned Judge found that the plaintiff had failed to prove his case. It may be observed that only two witnesses were examined by the plaintiff in support of his case, P. W. 1 Jyoti Prasad and P. W. 2 Lajjaram (plaintiff).

3. Learned counsel for the petitioner has urged that the learned Senior Civil Judge, Dholpur acted illegally and with material irregularity in exercise of his jurisdiction in holding that the statement of the plaintiff was inadmissible. It may be observed that the issues were framed on 17-9-1965, After some adjournments the case was fixed for recording the plaintiff's evidence on 16-3-1966 on which date two witnesses viz. Jyoti Prasad (P. W. 1) and Lalia Ram (P. W. 2) were examined on behalf of the plaintiff. It appears from the order sheet of the trial court of 16th March, 1966 that the statement of Jyoti Prasad was marked as P. W. 1 and that of Lajjaram was marked as P. W. 2. A contention was raised before the first appellate court on behalf of the defendant that under Order 13, rule 2 (4), Civil Procedure Code, the plaintiff should have appeared as a witness before any other witness on his behalf was examined. It was argued that in the present case the plaintiff's witness Jyoti Prasad was examined first and thereafter the plaintiff appeared as a witness. It was further contended that this could be done only with the permission of the Court but no such permission was obtained. This submission found favour with the learned Senior Civil Judge, Dholpur who held that since the plaintiff had not made any application to be examined after his withess Jyoti Prasad was examined, his statement recorded in contravention of the provisions of Order 18, Rule 2 (4), C. P. C. was inadmissible. Thus he refused to take into consideration the statement of the plaintiff Lajjaram and further found that the plaintiff's case was not proved merely by the statement of P. W. 1 Jyoti Prasad.

4. The first question therefore that arises for determination in this revision is whether the lower appellate court was correct in excluding the statement of the plaintiff Lajjaram as inadmissible in evidence. In this connection it is noteworthy that no objection was taken at the time when the statement of Jyoti Prasad and Lajjaram were recorded by the trial court on 16-3-66. It is crystal clear that the plaintiff was present in the court on 16-3-1966 and his statement was actually recorded on that very day. Even as regards, the order in which Jyoti Prasad and Lajjaram were examined there is nothing on the record except that Jyoti Prasad's statement has been marked as P. W. 1 and that of Lajjaram as P. W. 2. It is correct that there is no written application on the record on behalf of the plaintiff seeking permission to examine the plaintiff Lajjaram after his witness Jyoti Prasad was examined and there was of course no occasion for the court to pass any order permitting the plaintiff to do so. From the material on the record it is difficult to come to this conclusion firmly that Jyoti Prasad was examined first and Lajjaram was examined later. Learned counsel for the non-petitioner has submitted that it was never contended on behalf of the petitioner that Lajjaram had been examined prior to Jvoti Prasad and therefore in view of the fact that the statement of Jyoti Prasad was marked as P. W. 1, it must be accepted that Lajjaram came in evidence after Jyoti Prasad. Even, assuming so, the question is: can his statement be altogether excluded from consideration? Sub-rule (4) to Rule 2. Order 18, Civil Procedure Code inserted in Rajasthan may be reproduced below:

'(4) Where a party himself wishes to appear as a witness he shall so appear before any other witness on his behalf has been examined; provided that the Court may on an application made in this behalf and for reasons to be recorded, permit him to appear as his own witness at a later stage.'

5. A bare perusal of this sub-rule would show that under certain circumstances a party may appear in his evidence after another witness on his behalf has been examined. All that is required is that there should be an application to seek such a permission and the Court may grant permission. It is not necessary that there should be an application in writing. In the present case since no objection was raised on behalf of the defendant and the Court actually recorded the statement of Lajjaram, it may very well be presumed that the Court impliedly granted permission to Lajjaram to appear after Jyoti Prasad had been examined. It also cannot be forgotten that Lajjaram has been examined just after Jyoti Prasad on the same day and no time elapsed between the recording of the two statements. In these circumstances the lower court was, in my opinion, in error in excluding the statement of Lajjaram from the plaintiff's evidence. Learned counsel for the non-petitioner has, however, submitted that the lower appellate court had jurisdiction to decide that the provisions of Order 18, Rule 2(4). C. P. C. are mandatory and this court would not be justified in interfering with the judgment of the lower court in exercise of its revisional jurisdiction.

In support of this contention the learn-ed counsel has invited my attention to Ratilal Balabhai v. Ranchhodbhai, AIR 1966 SC 439, Mst. Tulsi Bai v. Chunilal, AIR 1964 Raj 243 and R. P. Mehta v I. A. Sheth, AIR 1964 SC 1676. In my opiniotf none of these authorities is to the point. The present is a case where the learned Senior Civil Judge has acted illegally and with material irregularity in exercise of his jurisdiction in excluding the statement of Lajjaram. He has clearly committed an error of procedure whereby the statement of Lajjaram which was admissible in evidence has been wrongly excluded. In this connection I may refer to the observations made by their Lordships of the Supreme Court in Keshardeo v. Radha Kishan, AIR 1953 SC 23 wherein it was observed that the words 'illegally' and 'material irregularity' do not refer to the decision arrived at but to the manner in which it is reached. Their Lordships were further pleased to observe that the errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been com-plied with. Here is a case in which the lower court has dismissed the plaintiff's suit without considering the plaintiff's statement and in disregard of it. In my opinion, therefore, this case falls within the ambit of Sub-clause (c) of Section 115 Civil Procedure Code, and the judgment, of the lower court is liable to be interfered with in exercise of the revisional powers of this Court.

6. I, therefore, allow this revision application, set aside the judgment and decree of the learned Senior Civil Judge, Dholpur, dated 14th March, 1967 and send the case back to him for deciding the appeal afresh according to law. In the circumstances of the case I leave the parties to bear their own costs of this revision petition.


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