VIBHAWNA Vs. ANITA

JUDGEMENT

(1.) By this petition preferred under Article 227 of the Constitution of India the petitioner/plaintiff has challenged the order dtd. 1/9/2025 passed by the 1st Civil Judge, Senior Division, Ratlam in RCS No.277/2018 whereby the application filed by the respondents under Sec. 151 of CPC for not permitting the petitioner to record her deposition as plaintiff witness has been allowed.

(2.) The suit has been instituted by the plaintiff for specific performance of contract of the suit property. An application under the provisions of Order XVI Rule 1 of CPC has been filed by the petitioner along with list of witnesses wherein the name of the petitioner and her husband were mentioned in item no.1 and 2, respectively. At the time of evidence the petitioner was ill therefore her statement was not recorded, however, her husband's evidence was recorded and when her health condition got improved, the petitioner appeared before the trial Court for evidence. At that time the respondent no.1 filed an application under Sec. 151 of CPC for not permitting the petitioner to record her evidence on the basis of Sec. 120 of the Indian Evidence Act, which was allowed vide the impugned order.

(3.) Learned counsel for the petitioner submitted that trial Court has failed to appreciate the fact that no prejudice will said to be caused, if the proposed witness is permitted for tendering evidence. He also submitted that the trial Court has failed to consider the fact that evidence of witness is essentially required for proper adjudication of dispute and to determine the real controversy in between the parties. It is further submitted that the trial Court has allowed the application on the wrong interpretation that as per Sec. 120 of the Indian Evidence Act, (hereinafter referred to as 'the Act') the evidence of the petitioner's husband has been recorded on the basis of power of attorney submitted by the petitioner in favour of her husband, therefore, there is no requirement of recording the statement of the petitioner again. However, Sec. 120 of 'the Act' runs as under: