Dismissed¶28

Rakhee Marwah v. Nathoo Ram Jolly and Anr.

Delhi HC11 Feb 2025CM(M)/276/2025

Case brief

AI extract

What is this about?

Delhi High Court CM(M) 276/2025 decided 11.02.2025 by Justice Ravinder Dudeja. Keywords: Order XVIII Rule 3A CPC directory not mandatory; examination of party as own witness at later stage; reasons to be recorded; attesting witness to will examined first; PW Joginder Sharma aged about 75 years; affidavit evidence already filed; cross-examination sequencing; no prejudice to petitioner; Article 227 of Constitution — not a fit case to interject in Trial Court order; petition dismissed; underlying suit CS No. 327/2022 Nathoo Ram Jolly and Anr. vs Rakhee Marwah; alleged will fabrication/forgery contention raised by petitioner's counsel.

What did the court decide?

Order XVIII Rule 3A CPC is directory and not mandatory; the Court may, for reasons to be recorded, permit a party to appear as its own witness at a later stage. ¶22

Rakhee Marwah Vs Nathoo Ram Jolly and Anr. — Writ and Judicial Review | Delhi HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶28

Issue for consideration

Whether the Trial Court acted contrary to Order XVIII Rule 3A CPC in permitting the respondents to examine their attesting witness before the party itself was examined, i.e., whether that provision requires the party to appear as witness before other witnesses on the party's behalf. +1 more

¶14

Court's answer

Order XVIII Rule 3A CPC is directory and not mandatory; the Court may, for reasons to be recorded, permit a party to appear as its own witness at a later stage.

¶22

Ratio / Principle

The petitioner would not suffer prejudice by examination of the attesting witness (aged above 75 years, already present) before the respondents, and given the witness's age it is not apposite to call him to court again and again.

¶26

Key takeaways

This is not a fit case for exercise of the Court's discretion under Article 227 of the Constitution of India to interject in the Trial Court's order.ratio¶27

Detailed headnote1 paragraphs

High Court of Delhi (Ravinder Dudeja, J.), order dated 11.02.2025 in CM(M) 276/2025 (Rakhee Marwah v. Nathoo Ram Jolly and Anr.). Petitioner challenged the Trial Court's order dated 04.11.2024 in CS No. 327/2022 ('Nathoo Ram Jolly And Anr. vs Rakhee Marwah'), whereby the respondents were permitted to examine first PW Mr. Joginder Sharma, attesting witness to the alleged will. Counsel argued the sequencing violated Order XVIII Rule 3A CPC and would let the other side fill loopholes; respondents contended the provision is only directory. Held: Order XVIII Rule 3A CPC is directory, not mandatory — the Court may, with reasons recorded, allow a party to appear as its own witness at a later stage; the petitioner suffers no prejudice since the witness, aged above 75 years and present that day, ought not to be summoned repeatedly; and this is not a fit case for exercising Article 227 discretion to interject in the Trial Court's order. Petition dismissed. Ancillary CM APPL. 8171/2025 (Exemption) allowed subject to all just exceptions.

¶1

$~67

¶2

IN THE HIGH COURT OF DELHI AT NEW DELHI

¶3

- CM(M) 276/2025

¶4

RAKHEE MARWAH .....Petitioner

¶5

Through: Mr. Manoj Kumar, Adv. alongwith petitioner in person.

¶6

versus

¶7

NATHOO RAM JOLLY AND ANR .....Respondents Through: Mr. G. S. Narula & Mr. Vijender Singh, Advs.

¶8

CORAM: HON'BLE MR. JUSTICE RAVINDER DUDEJA

¶9

O R D E R % 11.02.2025 CM APPL. 8171/2025 (Exemption)

¶10

Allowed, subject to all just exceptions.

¶11

This application stands disposed of.

¶12

CM(M) 276/2025 & CM APPL. 8170/2025 (Stay)

¶13

The present petition lays challenge to the order dated 04.11.2024 passed by the learned District Judge in CS No. 327/2022 titled as “Nathoo Ram Jolly And Anr. vs Rakhee Marwah” whereby the learned Trial Court permitted the respondents to examine Mr. Joginder Sharma, attesting witness to the will first.

¶14

The learned counsel for petitioner submits that the order passed by the learned Trial Court is contrary to Order XVIII Rule 3A, CPC which provides that where party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined , unless the

¶15

This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/02/2025 at 12:41:21

¶16

Court, for the reasons to be recorded, permits him to appear as his own witness at a later stage.

¶17

The learned counsel submits that it is important that examination of the petitioner as witness before examination of other witnesses is necessary to bring out truth before the Court in cross-examination in order to proove the falsity, forgey and fabrication of the alleged will.

¶18

It is further submitted that examination of other witnesses before the petitioner would give petitioner an opportunity to fill loopholes and lacunas in their case.

¶19

Per contra, the learned counsel of respondent has submitted that provisions under Order XVIII Rule 3A CPC, which requires the parties to be examined first before calling the witness is directory in nature and not mandatory and, therefore, there is no merit in the challenge of the impugned order dated 04.11.2025.

¶20

It is also submitted that the matter is listed today at 2:00 PM for crossexamination of PW Mr. Joginder Sharma, who has already filed his evidence by way of affidavit and the copy of the same has already been supplied to the petitioner.

¶21

It is submitted that PW Mr. Joginder Sharma is aged about 75 years and is already waiting in court for his cross-examination today.

¶22

As is evident from the language Order XVIII Rule 3A provisions, the said provisions is directory and not mandatory inasmuch as, the Court for reasons to be recorded permit the party to appear as his own witness at a later stage.

¶23

The learned Trial Court taking note of the submissions of the respondents that the age of the attesting witness Mr. Joginder Sharma is

¶24

¶25

more than 75 years, permitted the respondents to examine him first.

¶26

Considering that the provisions of Order XVIII Rule 3A CPC being directory and not mandatory and as also the fact that the witness Mr. Joginder Sharma who has been ordered to be examined is aged more than 75 years and is present today before the Trial Court, the Court is of the view that petitioner would not suffer any prejudice by examination of such witness before the examination of the respondents and considering the age of the witness, it may not be apposite that witness be called again and again to court.

¶27

In my view, this is not a fit case where the Court should exercise its discretion under Article 227 of the Constitution of India to interject in the order passed by the learned Trial Court.

¶28

Court thus finds no merit in the present petition, the present petition is accordingly dismissed.

¶29

RAVINDER DUDEJA, J

¶30

FEBRUARY 11, 2025/ sky

¶31

This is a digitally signed order.

¶32

The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/02/2025 at 12:41:21

Rakhee Marwah v. Nathoo Ram Jolly and Anr.

Case brief

What is this about?

What did the court decide?

Rakhee Marwah v. Nathoo Ram Jolly and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

M/S. Janki Management Consultants Pvt. Ltd. Vs M/S. Samsung India Electronics Pvt. Ltd.

Sanjeev Malhotra Vs Inder Mongia

Sant Ram Karta of HUF Sant Ram and Sons Vs M/S Sava International Pvt. Ltd. & Anr.

Sant Ram & Anr. Vs M/S Sava International Pvt. Ltd. & Anr.

Sanja Y Khanna Vs Sh. Bharamtod Singh

Sh Parveen Kumar Rastogi & Ors. Vs Sh Radhey Shyam Rastogi & Ors.

Fiitjee Ltd. Vs Madhulika Singh

Vijay Vasudeva & Ors. Vs Control Risks India Private Limited

M/S. Janki Management Consultants Pvt. Ltd. Vs M/S. Samsung India Electronics Pvt. Ltd.

Sanjeev Malhotra Vs Inder Mongia

Sant Ram Karta of HUF Sant Ram and Sons Vs M/S Sava International Pvt. Ltd. & Anr.

Vijay Bansal Vs Beena Tripathi

Anil Soni Vs Nidhi Soni

Yogesh Parnami (Huf) Vs Sk Mittal