Judgment:
ORDER
Abhay M. Naik, J.
1. Briefly stated facts relevant for the purposes of this writ petition are that the plaintiff/petitioner instituted a suit for specific performance of an agreement of sale. Suit is being opposed by the defendants. Alter raising issues, learned Trial Judge proceeded with recording of evidence. Plaintiff/petitioner in her evidence submitted affidavits containing chief examination of herself as well as of few of witnesses. Since Exh. P-3 marked in plaintiff's chief examination was not available, cross-examination on the plaintiff as well as her witnesses could not be conducted.
2. On 25-4-09, learned Trial Judge directed the plaintiff to make available Exh. P-3 in original for cross-examination on the next date of hearing on 27-6-09. However, on 25-4-09 itself an affidavit containing chief examination of one Parasram Kukreja as plaintiff's additional witness was submitted which was not accepted by the Trial Court on the ground that three opportunities for evidence were already exhausted by the plaintiff. Aggrieved by this denial, plaintiff/petitioner has approached this Court under Article 227 of Constitution of India by way of the present writ petition.
3. It is contended on behalf of the petitioner that impugned order causes manifest injustice inasmuch as plaintiff/petitioner is deprived of her valuable right to adduce evidence which was being exercised with promptness in lawful manner.
4. Per contra, Shri Bansal, learned Counsel for the respondents contended that in view of the proviso contained in Sub-rule (1) of Order XVII, CPC, plaintiff/petitioner having already availed three opportunities for evidence, is not entitled to have more opportunity for submitting affidavit containing chief examination of a fresh witness.
5. Considered the submissions in the light of legal provisions governing the situation and perused the record.
6. Order XVI of CPC contains provision for summoning and enforcing attendance of the witnesses. Order XVII, CPC empowers the Court for grant of adjournment. Order XVIII, CPC contains provision for hearing of the suit and examination of witnesses. Rule 4 of Order XVIII, CPC earlier provided that evidence of the witness in attendance shall be taken oral in Open Court in the presence and under the personal direction and superintendence of the Judge. Rule 4 later-on was substituted w.e.f. 1-7-02 by virtue of Code of Civil Procedure (Amendment Act) 2002. Relevant substituted provision which is in force w.e.f. 1-7-02 is as follows:--
4. Recording of evidence.-- (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the parly who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the order of the Court.(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (cxamination-in-chief) by affidavit has been furnished to the Court shall be taken either by the ourt or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this Sub-rule, consider taking into account such relevant factors as it thinks fit.(3) The Court or the Commissioner, as the case maybe, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination:
Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments.(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for the reasons to be recorded in writing extension of time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16-A, 17 and 18 or Order XXVI, in so far as they are applicable, shall apply to the issue, execution any return of such commission under this rule.
7. Order sheet dated 25-4-09 of the Trial Court is on record being impugned order marked as Annexure P-1, which reveals that learned Trial Judge adjourned the suit for producing Exh. P-3 in original and for report of Commissioner after recording additional chief examination of the plaintiff and cross-examination of plaintiff and her witnesses Vasudev and Parmanand. Thus, the evidence of the plaintiff was still going on 25-4-09.
8. Learned Trial Judge by the impugned order refused to take on record the affidavit containing chief examination of plaintiffs witness Parasram Kukreja in the light of proviso to Order XVII Rule 1, CPC on the ground that three opportunities for evidence were already granted to the plaintiff. This provision reads as under:
(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.
9. A bare look on the aforesaid makes it clear that the said proviso empowers the Court to refuse adjournment if availed by a party for more than three times during hearing of the suit. Plaintiff/petitioner had submitted the affidavit of her witness Parasram Kukreja which contained the chief examination. She did not pray for adjournment. Thus, proviso to Sub-rule (1) of Order XVII, CPC had no application on 25-4-09. It comes into play only if a party seeks adjournment after having availed the same for more than three times during hearing of the suit.
10. In view of the aforesaid, this Bench is of the considered opinion that the impugned order is not sustainable in law for the simple reason that Order XVII Rule 1, CPC empowers the Court to refuse grant of more than three adjournments to a party during hearing of the suit. In the case in hand, plaintiff/petitioner did not seek adjournment on 25-4-09 but submitted an affidavit of a fresh witness which contained chief examination. Moreover, other affidavits of the plaintiff as well as of other witnesses containing their chief examination were on record and such witnesses were required to be cross-examined. It is not obligatory on the part of a litigant to produce evidence of a fresh witness before cross-examination of the previous witness is concluded. It is only after conclusion of cross-examination of a particular witness that the litigant may decide whether to produce further evidence or not. This is an absolute choice of a party which cannot be curtailed by the Court in the impugned manner. However, adjournment for this purpose may be refused in exercise of powers conferred by virtue of proviso to Sub-rule (1) of Order XVII Rule 1, CPC. Thus, if a litigant before closure of his evidence submits an affidavit containing chief examination of a fresh witness and keeps such witness available for cross-examination without seeking adjournment for this purpose, the Trial Court shall have to take the affidavit on record and allow opponent to cross-examine the witness. In such a situation, the Trial Court has no power to refuse the affidavit by invoking the proviso to Order XVII Rule 1, CPC. It is further made clear that if a party submits affidavit alone and prays for adjournment to make deponent available for cross-examination, the Trial Court shall have power to refuse to accept the affidavit by invoking such proviso.
11. In the instant case, evidence of the plaintiff was admittedly going on and the same was obviously not closed, cross-examination on plaintiff and her other witnesses was yet to be recorded. This being so, learned Trial Judge could not have invoked the said proviso to prevent the plaintiff from submitting affidavit containing chief examination of a fresh witness. Accordingly, it would result in manifest injustice because plaintiff would be deprived of adducing evidence at the stage when the suit itself was fixed for plaintiff's evidence.
12. In this view of the matter, impugned order is not found sustainable in law and the same is hereby set aside. Learned Trial Judge is directed to take the said affidavit of plaintiff's witness Parasram Kukreja on record. It is needless to say that defendants shall have a right to cross-examine and to adduce evidence in rebuttal.
No order as to costs.