Gulab Devi Vs. Bhagwan Sahai - Court Judgment

Excerpt:
civil procedure code - order 18, rule 1--munsiff refuses to examine plaintiff's witness holding her power of attorney and orders plaintiff to examine herself--whether order is illegal.;it was open to her to examine her witness or witnesses, & the learned munsiff committed an error of law in the exercise of his jurisdiction when he denied that right to the plaintiff and refused to examine her attorney as her witness. he committed another similar error in deciding, on behalf of the plaintiff, that she should record her own statement in support of her claim in the suit. - - 2. the plaintiff feels aggrieved on the ground that it was not open to the trial court to refuse to examine her witness, particularly when he is her husband and holds her power of attorney and is well acquainted with the facts of the case.orderp.n. shinghal, j.1. this revision, application of the plaintiff is directed against the order of additional munsiff no. 1, jaipur city, dated may 27, 1968, by which he refused to permit the plaintiff's learned counsel to examine, in evidence, the person holding the power of attorney of the plaintiff, and directed that the plaintiff should record her own statement in support of her claim in the suit.2. the plaintiff feels aggrieved on the ground that it was not open to the trial court to refuse to examine her witness, particularly when he is her husband and holds her power of attorney and is well acquainted with the facts of the case. it is also her grievance that the munsiff has taken it upon himself to decide who will be examined as her witness.3. order 18, rule 1, civil p. c. gives the plaintiff the right to lead her evidence, and this had to be so in the present case as the proceedings were ex parte so that there was no dispute about the plaintiff's right to begin. as such it was open to her to examine her witness or witnesses, and the learned munsiff committed an error of law in the exercise of his jurisdiction when he denied that right to the plaintiff and refused to examine her attorney as her witness. he committed another similar error in deciding, on behalf of the plaintiff, that she should record her own statement in support of her claim in the suit. the position of the law has been examined and stated as follows in morno moyee debee v. bheem coomar chowdhry, (1866) 6 suth wr 231 :--'now, it is not the business of the court to determine what witnesses shall be examined; the parties must select their own witnesses and call upon the court to examine such of them as they may offer for examination.'reference may also be made to in re enoch and zaretzky bock & co.'s arbitration, 1910-1 kb 327. where it has been held that neither a judge nor an umpire has any right to call a witness in a civil action without the consent of the parties. this decision has been followed in jones v. national coal board, 1957-2 all er 155, where it has been observed fat page 159) that the judge sits to hear and determine the issues raised by the parties. not to conduct investigation or examination, on behalf of the society at large, and that if a judge should himself conduct the examination of witnesses he would be blamed for descending into the arena of the controversy. it has further been stated as a firmly established rule of law that the judge must rest content with the witnesses called by the parties.4. it is therefore quite clear that the learned munsiff has acted in the exercise of his jurisdiction illegally in making the impugned order. the revision application is allowed, the impugned order dated may 27, 1968 is set aside and the munsiff is directed to examine such witnesses as are produced by the plaintiff in support of her claim in the suit.

Judgment:
ORDER

P.N. Shinghal, J.

1. This revision, application of the plaintiff is directed against the order of Additional Munsiff No. 1, Jaipur City, dated May 27, 1968, by which he refused to permit the plaintiff's learned counsel to examine, in evidence, the person holding the power of attorney of the plaintiff, and directed that the plaintiff should record her own statement in support of her claim in the suit.

2. The plaintiff feels aggrieved on the ground that it was not open to the trial Court to refuse to examine her witness, particularly when he is her husband and holds her power of attorney and is well acquainted with the facts of the case. It is also her grievance that the Munsiff has taken it upon himself to decide who will be examined as her witness.

3. Order 18, Rule 1, Civil P. C. gives the plaintiff the right to lead her evidence, and this had to be so in the present case as the proceedings were ex parte so that there was no dispute about the plaintiff's right to begin. As such it was open to her to examine her witness or witnesses, and the learned Munsiff committed an error of law in the exercise of his jurisdiction when he denied that right to the plaintiff and refused to examine her attorney as her witness. He committed another similar error in deciding, on behalf of the plaintiff, that she should record her own statement in support of her claim in the suit. The position of the law has been examined and stated as follows in Morno Moyee Debee v. Bheem Coomar Chowdhry, (1866) 6 Suth WR 231 :--

'Now, it is not the business of the Court to determine what witnesses shall be examined; the parties must select their own witnesses and call upon the Court to examine such of them as they may offer for examination.'

Reference may also be made to In re Enoch and Zaretzky Bock & Co.'s Arbitration, 1910-1 KB 327. where it has been held that neither a Judge nor an umpire has any right to call a witness in a civil action without the consent of the parties. This decision has been followed in Jones v. National Coal Board, 1957-2 All ER 155, where it has been observed fat page 159) that the Judge sits to hear and determine the issues raised by the parties. not to conduct investigation or examination, on behalf of the society at large, and that if a Judge should himself conduct the examination of witnesses he would be blamed for descending into the arena of the controversy. It has further been stated as a firmly established rule of law that the Judge must rest content with the witnesses called by the parties.

4. It is therefore quite clear that the learned Munsiff has acted in the exercise of his jurisdiction illegally in making the impugned order. The revision application is allowed, the impugned order dated May 27, 1968 is set aside and the Munsiff is directed to examine such witnesses as are produced by the plaintiff in support of her claim in the suit.