Dismissed

Kachribai W/O. Lukha Joshi v. Pandurang Shankar Choudhary and Ors.

Bombay HC4 Oct 2007WP/6527/2007

Case brief

AI extract

What is this about?

In a writ petition challenging the trial court's permission for a defendant to examine himself after other witnesses, the High Court held that Order 18 Rule 3-A of CPC is directory. Finding the order's exercise of discretion reasonable, the High Court dismissed the petition, distinguishing the cited Supreme Court precedent and rejecting the reliance on Order 18 Rule 17 CPC.

What the court decided

AI extract

Kachribai W/O. Lukha Joshi Vs Pandurang Shankar Choudhary… — Property and Title | Bombay HC (2007)

¶1

-1-

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

 CIVIL APPELLATE SIDE

¶4

 WRIT PETITION NO. 6527 OF 2007

¶5

 Smt. Kachribai w/o Lukha Joshi.... Petitioner

¶6

 versus

¶7

 Pandurang Shankar Choudhary ...... Respondent.

¶8

 Shri D.K.Ghaisas for the petitioner.
 Shri Amol Mhatre for respondents 1 and 2.

¶9

 CORAM; A.P. DESHPANDE, J.
DATED; 04TH OCTOBER, 2007

¶10

P.C.;

¶11

 1. The present petitioner instituted a regular Civil

¶12

 Suit No.596/90 for declaration and perpetual

¶13

 injunction. The declaration sought by the petitioner
 is that the petitioner is the owner of the suit land
 whereas the case of the respondent/defendants is that
 the mother of the plaintiff has entered into an
 agreement with the defendants for sale of the suit
 land and the defendants have been put in possession of

¶14

 the property in part performance of the said
 agreement. In the first instance, the suit came to be
 decreed in favour of the present petitioner. However,

¶15

 in an appeal, the judgment and decree passed by the

¶16

 trial court came to be set aside and the matter was
 remanded for re-trial as the trial court had not

¶17

-2-

¶18

 framed the issues in regard to the ownership of the
 suit land. The Appellate Court had permitted the
 parties to lead additional evidence. Acting pursuant
 to the express liberty granted by the Appellate Court,
 the learned counsel for the petitioner submits that
 the plaintiff did not lead any evidence. However, the
 defendant nos. 1 and 2 being desirous of leading
 further evidence have examined the Power of Attorney
 holder. It appears that the plaintiff raised
 objection to the evidence of the Power of Attorney
 holder by placing reliance on a judgment in case of

¶19

Janki Bhojwani’s case reported in AIR 2005, S.C. page

¶20

439. Realising the difficulties that may crope up in
 regard to the truth of the contents of the three
 agreements, which have been held to be formerly
 proved, the defendants 1 and 2 moved an application
 with a view to examine the defendant no. 2 as witness
 after the remand. The petitioner objected to the
 prayer made in the application. Over-ruling the
 objection raised by the petitioner/plaintiffs, the
 trial court has permitted examination of defendant
 no.2. What is to be noted is that under the liberty

¶21

 granted by the Appellate Court, it is open for the
 defendants to lead further evidence. What could be
 objected by the plaintiff is that defendant no.2 did
 not examine himself prior to the examination of Power
 of Attorney holder. Thus the case falls under Order

¶22

-3-

¶23

 18 Rule 3-A of CPC. The said provision is not
 mandatory but directory in nature. The Court can
 permit the party to examine himself after examination
 of other witnesses. In the present case exercising
 discretion in favour of the defendant nos.1 and 2, the
 trial court has granted the said permission. The
 trial court has observed that for an effective and
 complete adjudication of the issue involved in the
 suit, it is desirable to permit the defendant no.2 to
 examine himself and thus allowed the application.

¶24

 4. Perused the impugned order. The same does not
 call for any interference . According to the learned
 counsel for the petitioner the case falls under Order
 18 Rule 17 of CPC and hence the trial court could not
 have deviate from the procedure laid down under CPC.
 Reliance is also placed on a judgment of the learned
 Single Judge of this Court reported in 2003(2) ALL MR
444. The reliance placed on the said judgment is
 misconceived as the case does not fall under Order 18
 Rule 17. Thus there being no merit in the petition,
 the same is summarily dismissed.

Kachribai W/O. Lukha Joshi v. Pandurang Shankar Choudhary and Ors.

Case brief

What is this about?

What the court decided

Kachribai W/O. Lukha Joshi v. Pandurang Shankar Choudhary and Ors.

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sitaram Soma Mhatre and Ors. Vs Babu Soma Mhatre and Anr.

Ichalkaranji Urban Co-Op.Bank Ltd. Vs the Assistant Registrar , Co-Operative Societies and Ors.

Gerald M. Coelho Vs Hazel Francis and Ors.

Vinita Sushi Aswani and Ors. Vs Tilotama Ramchandra Shingid and Ors.

Sil Boards Private Limited Vs Executive Engineer, Electricity Dadra and Nagar Haveli and Ors.

Govind Krishna Indore Vs Bhikaji Tukaram Bangar and Anr.