POKHARDAS Vs. GOVIND SHARAN & ORS.

JUDGEMENT

(1.) THIS petition has been filed against the order dated 07.01.2013, passed by the Civil Judge (J.D.) West, Jaipur Metropolitan City, Jaipur dismissing an application filed by the petitioner -defendant under Order 18 Rule 3A CPC in a suit for eviction filed under the Rajasthan Rent Control Act coming into force effective 01.04.2003. Mr. N.K. Maloo, Sr. Advocate with Mr. V.K. Tamoliya, appearing for the petitioner -defendant (hereinafter 'the defendant') has submitted that the impugned order dated 07.01.2013 is liable to be quashed and set aside in view of the fact that the trial court in allowing the co -plaintiff one Vinod Kumar to be examined on his belated affidavit in evidence has transgressed the mandate of Order 18 Rule 3A CPC which provides that 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 his own witness at a later stage. Counsel has submitted that co -plaintiff, Govind Sharan had been examined on his affidavit in evidence, but appeared to have abandoned the proceedings midway apparently for the reason of cross -examination being detrimental to the case of the plaintiffs. Counsel submits that the affidavits in evidence of other witnesses have been filed and consequently, without a proper application made under Order 18 Rule 3A CPC and the Court for reasons recorded allowing the said application, the co -plaintiff, Vinod Kumar could not have been allowed to file his affidavit in evidence and to be examined thereupon.

(2.) MR . J.P. Goyal, Sr. Advocate with Ms. Manisha Surana, appearing for the respondents -Plaintiffs (hereinafter 'the plaintiffs') has on the contrary submitted that the provisions of Order 18 Rule 3A CPC would not apply to the facts of the present case. He submits that Vinod Kumar whose affidavit in evidence has been filed before the trial court in respect to which objection was raised by the defendant on his application under Order 18 Rule 3A CPC is a co -plaintiff and witnesses simpliciter in support of the plaintiff's suit have yet not been examined. Counsel submits that the affidavits in evidence of the plaintiff's witnesses filed under the new procedure for examination -in -chief of the witnesses in Court do not tantamount to anything as the deponents of the said affidavits have not been put through cross -examination before the trial court. Counsel submits that aside of the above, if warranted the co -plaintiff Vinod Kumar would also move an application before the trial court for his cross -examination on his affidavit in evidence and thereupon any purported irregularity could be corrected on the basis of the application filed and reasoned order thereon.

(3.) COUNSEL for the parties are agreed on the proposition that the provisions of Order 18 Rule 3A CPC are directory in nature as held by this Court in the case of Bajrang Ram Vs. Motaram [ : 1981 RLW 16]. The issue however is that if at all the aforesaid provisions of Order 18 Rule 3A CPC apply to the facts of the present case. In my considered opinion, the witnesses for the plaintiffs having not yet been put through cross -examination on their affidavits in evidence, it cannot be held that any "other witness" on behalf of the plaintiff had been examined within the meaning of Order 18 Rule 3A CPC. The word "examine" under Order 18 Rule 3A CPC would entail not only the affidavit in evidence being filed in lieu of examination -in -chief, but also cross -examination thereon. Vinod Kumar is a co -plaintiff and the "examination" of the witnesses of the plaintiff in terms of the language of the Order 18 Rule 3A CPC not having taken place, in my considered view, there is no infraction of the provisions of Order 18 Rule 3A CPC in allowing the co -plaintiff Vinod Kumar to file his affidavit in evidence and being cross -examined thereon.