Amarjit Singh Pardesi v. Gurdial Singh

-1- In the High Court of Punjab and Haryana at Chandigarh Date of Decision: 28.07.2015.

Amarjit Singh Pardesi ........Petitioner

Versus

Gurdial Singh Pardesi @ Bhangu .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA

Present:

Mr. Vaibhav Sehgal, Advocate for the petitioner.

Mr. Chanchal K. Singla, Advocate for the respondent.

**** SABINA, J.

Petitioner has filed this petition under Article 227 of Constitution of India challenging the order dated 2.1.2013 (Annexure P-1).

Learned counsel for the petitioner has submitted that the parties are real brothers. Petitioner has filed suit for declaration that he was the exclusive owner in possession of the plot in question. Respondent while leading his evidence had examined his attorney as DW-1. Thereafter the defendant could not be permitted to appear in the witness box as DW-2 without permission of the Court. In this regard, learned counsel has placed reliance on order 18 Rule 3A of the Code of Civil Procedure, 1908 ('CPC' for short). Learned counsel for the respondent, on the other hand,

-2has submitted that the parties are residing in America. The attorney of the respondent had appeared in the witness box as DW-1. However, when the respondent visited India, he appeared in the witness box as his own witness. Order 18 Rule 3A CPC was directory and in a given case, Court could examine a party at a later stage, though, previous permission had not been taken by the party.

In the present case, petitioner has filed suit for declaration against the respondent. Parties are real brothers and are residing in America. Petitioner has filed the suit through his attorney. Respondent also executed a power of attorney in favour of Harjit Singh DW-1. Consequently, Harjit Singh appeared as a witness on behalf of the respondent before the Trial Court as DW-1. However, thereafter respondent visited India and appeared in the witness box as DW-2. Thereafter, an application was moved by the petitioner that affidavit of DW-2 in examination-in-chief be struck off as respondent had not taken permission as envisaged under Order 18 Rule 3A CPC. The said application was dismissed by the Trial Court vide the impugned order dated 2.1.2013 (Annexure P-1). Hence, the present petition.

Order 18 Rule 3A CPC reads as under:- 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 hiss own witness at a later stage.

Order 18 Rule 3A is directory in nature. Initially

-3respondent permitted his attorney to appear on his behalf as he was not in India. However, when the respondent visited India, he appeared as his own witness. No injustice can be said to have been caused to the petitioner warranting interference by this Court in revisional jurisdiction. Petitioner will get an opportunity to crossexamine the respondent. No ground for interference is made out.

Dismissed.

(SABINA) JUDGE July 28, 2015 Gurpreet