RUPALI GHOSH Vs. ASHOK GHOSH

JUDGEMENT

(1.) THIS application is at the instance of the plaintiff no.7 and is directed against the order dated November 4, 2009 passed by the learned Civil Judge (Senior Division), Additional Court, Purulia in Title Suit No.100 of 1996 thereby allowing an application filed by the defendant for his examination under Order 18 Rule 3A of the Code of Civil Procedure. The plaintiff no.7/pettitioner herein and the plaintiffs/opposite parties instituted the Title Suit No.100 of 1996 for a decree of declaration of title and for permanent injunction against the opposite party nos.1 to 9 herein. In that suit, the defendants are contesting the suit by filing a joint written statement. Evidence on behalf of the plaintiffs has been closed and the defendants have examined 4 witnesses in support of their defence. At that stage, the defendants wanted to examine the defendant under Order 18 Rule 3A of the C.P.C. At that time, the plaintiffs raised objection. By the impugned order, the learned Trial Judge has allowed the application under Order 18 Rule 3A of the C.P.C. Being aggrieved, the plaintiff no.7 has filed this application. Mr. Biswaranjan Bhakat, learned Advocate appearing on behalf of the petitioner, submits that in fact the defendants have examined 4 witnesses in support of their contention. Thereafter, they filed an application for adducing the evidence by examining a defendant under Order 18 Rule 3A of the C.P.C and they filed the examination-in-chief accordingly. If such prayer is granted, the effect would be the defendants would fill up the lacunas in the evidence adduced by other witnesses and he would destroy the cross-examination of the D.Ws. For that reason, the defendants have filed the application under Order 18 Rule 3A of the C.P.C at the belated stage. On the other hand, Mr. J. R. Chatterjee, learned senior Advocate appearing on behalf of the opposite parties, submits that the plaintiffs did not raise any objection when the 4 witnesses were examined on behalf of the defendants. Subsequently, when the defendants filed an application under Order 18 Rule 3A of the C.P.C along with examination-in-chief by way of an affidavit, the objection was raised by the plaintiffs. The application under Order 18 Rule 3A of the C.P.C had been filed only to regularise the matter and in fact, the plaintiffs had no objection for allowing the defendant to be examined at some later stage because they participated in the examination of the 4 witnesses. Therefore, the learned Trial Judge has rightly allowed the application under Order 18 Rule 3A of the C.P.C. Therefore, the short question involved in the application is whether the learned Trial Judge was justified in allowing the application under Order 18 Rule 3A of the C.P.C. Upon hearing the learned Advocate for the parties and on going through the materials on record, I find that admittedly after close of the evidence on behalf of the plaintiffs, the defendants examined 4 witnesses and those witnesses were crossexamined on behalf of the plaintiffs. At that time, no objection was raised. Subsequently, when the defendants wanted to examined one of the defendants in support of the defence contention, the learned lawyer for the plaintiffs raised objection contending that previously, the defendants did not pray for permission to get the defendant examined at later stage and so the defendants should not be permitted to adduce evidence by examining one of the defendants at a later stage. Now, the provisions of Order 18 Rule 3A of the C.P.C. are directory and not mandatory. When the plaintiffs participated in the process of examining the other witnesses on behalf of the defendants without any objection and those 4 witnesses have been fully cross-examined on behalf of the plaintiffs, it will be presumed that they had no objection in the manner the examination of the D.Ws. was being made. Had there been any objection for getting the defendant being examined at a belated stage, they could have raised objection at the very beginning of the examination of the D.W. No.1 and they could have enquired whether the defendant would examine any of the defendants in support of the defence contention. Instead of doing that they participated in the process of cross-examination of as many as 4 D.Ws. meaning thereby that they had no objection in the recourse adopted by the defendants. Mr. Chatterjee has referred to the decision of Gurmail Chand Vs. Ashok Verma reported in AIR 2004 Punjab and Haryana 306 in support of his contention that when no objection was raised at the beginning of examination of the first witness for the defendants, the defendant is estopped from raising such an objection at a later stage. THIS decision supports the contention of the defendants in the circumstances. Since the provision of Order 18 Rule 3A of the C.P.C. being directory and not mandatory, I am of the view that the learned Trial Judge has not committed any wrong in allowing the application under Order 18 Rule 3A of the C.P.C. The learned Trial Judge has not failed to exercise the jurisdiction vested in him or that he has exercised his jurisdiction exceeding the limit. He has not committed any error in exercising the discretionary power vested in him. Therefore, I am of the view that there is nothing to interfere with the impugned order. So, the impugned order should be sustained. THIS application has no merit at all. It is accordingly dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.