SACHIN Vs. SUNITA VASHISHT

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution prays for quashing order dated 27-2-2004 passed by the Civil JurJge (Jr. Division) Kaithal declining the prayer made by the plaintiff - petitioner for examining the plaintiff Sachin in rebuttal on the ground that his father through whom the suit was filed as a natural guardian of Sachin (minor) has already been examined. The plaintiff petitioner had already closed his evidence in affirmative in compliance of Order XVIII, Rule 3 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') and no right was reserved at that stage for examination of the minor on attaining majority. Even defendant respondent has closed their evidence.

(2.) Brief facts of the case are that the plaintiff petitioner filed suit for declaration claiming damages to the effect that the act and conduct of defendant respondent No.1 in collusion with defendant -respondent No.5 in not permitting the plaintiff - petitioner to attend the school was malicious, capricious, arbitrary, illegal null and void. After filing the written statement and replication the trial Court framed nine issues. The plaintiff petitioner through his father has produced evidence. The evidence of plaintiff petitioner was closed in the affirmative on 5-1 -2001. After the closing of evidence by the defendant respondent the plaintiff petitioner filed an application on 3-2-2004 for adducing additional evidence by himself taking the witness stand on the ground that he had attained majority, has been dismissed by the trial Court on 27-2-2004 by the impugned order.

(3.) After hearing the learned counsel, I am of the considered view that the instant petition filed by the plaintiff-petitioner is a frivolous piece of litigation and deserves to be dismissed. It is well settled that after the plaintiff has closed his evidence in affirmative, no additional evidence could be permitted by reopening the affirmative evidence after the evidence by the defendant has been closed because such a procedure would result into great prejudice to the defendant. In a case like the present one, it would further result into violation of the principle laid down under Order XVIII, Rule 3-A of the Code which requires that a party to the proceedings who wishes to appear as a witness, he shall appear before any other witness on his behalf has been examined. It is only in exceptional circumstances for the reasons to be recorded in writing by the Court that a party to the proceedings is permitted to appear at a later stage. It was precisely for this reason that the amendment made w. e. f. 1-7-2002 even deleted the provisions of Order XVIII, Rule 17-A of the Code which had earlier permitted producing of evidence that was not previously known to a party or which could not be produced despite due diligence. The excuse of the plaintiff-petitioner to appear after attaining majority cannot be accepted because there is no bar for a minor to appear as a witness. It has been repeatedly held that the child witness is also a competent witness who may testify unless the Court comes to the conclusion that such a witness is prevented from understanding the questions put to him or has been giving irrational answers to those questions by virtue of tender age, disease or any other cause. Under Section 118 of the Indian Evidence Act, 1872, all witnesses are competent witnesses unless are prevented from any of the aforementioned disabilities. In this regard reference may be made to the judgments of the Supreme Court in the cases of Janardhan Tewary v. State of Bihar, (1971)3 SCC 927 and Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341.