MOHINDER SINGH Vs. MELA SINGH AND OTHERS

JUDGEMENT

(1.) MOHINDER Singh, Plaintiff -Petitioner, who was admittedly a minor at that time, filed a suit(from which this petition has arisen) on February 19, 1972, through his mother Smt. Maubhari as his next friend for setting aside the sale of land by one set of Defendants to the other set of Defendants. The last date, on which the evidence of the Plaintiff was recorded, was August 17, 1974. As per details given in the orders passed by the trial Court, the statements of three witnesses for the Plaintiff were recorded and no other witness of his was present. When the statement of of Petitioner's mother Manbhari as his next friend' had been recorded, the Plaintiff stated (Presumably the counsel for the Plaintiff so stated) that the Plaintiff bad attained majority and wanted to examine himself. The learned Subordinate Judge noted that the Plaintiff himself was not present and there was no application before him to show that he fad really attained majority. As various opportunities had already been allowed to the Plaintiff to complete his evidence, adjournment was refused by the trial Court and the case of the Plaintiff was closed under order 17 Rule 1(3) of the Code of Civil Procedure Code. The case was adjourned for the evidence of the Defendants to September 24, 1974. Some evidence of the Defendants was recorded on that date and the case was adjourned for the remaining evidence of the Defendants to November 2, 1974. In between that period, the Plaintiff moved an application dated September 27, 1974, wherein he stated that the Plaintiff's evidence having been closed abruptly, the documents mentioned in the application, which were already on the file of the case, could not be tendered in evidence by the counsel for the Plaintiff as the counsel bad made a prayer for leave to examine the Plaintiff himself as his own witness on the pleas that he had since attained majority and wanted to prosecute the case hi self. It is against the order of the trial Court dated November 12, 1974 dismissing the application of the Plaintiff that the pres it revision petition has been filed.

(2.) THE putting in of the Plaintiff in the witness -box as his own witness has nothing at all to do with his attaining the majority. Though a minor Plaintiff on attaining the majority does acquire a statutory right under order 32 Rule 12 of the Code of Civil Procedure to shake of the guardian and with the leave of the Court to prosecute the suit himself, there is no bar to his appearing as his own witness at the appropriate time even before attaining majority and without requiring any permission of the Court. The emphasis in the application before the trial Court and the burden of the arguments before me by the Learned Counsel for the Plaintiff Petitioner has been on the necessity of his appearing in the witness -box and supporting his case with his own statement and not for Shaking of his guardian and prosecuting the suit himself. Neither the application nor the arguments advanced before me disclose any lack of faith in the next friend of the Petitioner who is no other person than his own mother. Mr Sarin, who appears for Respondent No 1, submits that in fact the Plaintiff had not and has not even till today attuned majority and is Mill a minor. Be that as it may, the question as to whether the Plaintiff has or has not attained majority appears to me to be irrelevant for purposes of disposing the petition before me. If he has attained majority, he has acquired the right to prosecute the suit further himself and to shake of the guardian. That would, however, not entitle him to reopen the case. He has, in that situation, to continue the suit from the stage where he replaced himself for' his guardian The crux of the matter before me is divided into two parts, namely, (i) relating to the tendering in evidence of the documents which are already on the file ; and (ii) permission to allow the Plaintiff to appear in the witness -box as his own witness. So far as the first part is concerned, it appears to me that it escaped the notice of the trial Court that order on that part of the request of the Plaintiff could be passed even without allowing the remaining prayer in the application. The 10 out of 12 documents, which were sought to be tendered in evidence comprise copies or revenue record i.e. copies of Jamabandis, khataunis, mutations, nagsha hagwar or pedigree table etc. Some of these documents can be tendered in evidence without formal proof. The only document, which might need proof in case of denial of its authenticity by the Defendants is copy of the sale deed. The twelfth document is a copy of a birth certificate and if it is a certified copy, it can also be tendered in evidence. I think, the interest of justice requires that the Defendants may be allowed an opportunity to admit or deny the 12 documents which are stated to have been on the record since before the closing of the Plaintiff's evidence. Such of the documents, which the Defendants admit or which do not require formal proof and can be tendered in evidence, should be admitted in evidence and accepted. If any document is left out as it is not admitted or is denied, the Plaintiff may be allowed an opportunity to give formal evidence in proof thereof, which evidence shall not be of anyone else but the Plaintiff's own statement. If, however, the Defendants do not dispute the authenticity of the twelve documents of the Plaintiff, the same would be admitted in evidence and it would not be necessary to examine the Plaintiff in order to prove anyone of them.

(3.) FOR the foregoing reasons, I partially allow this petition and permit the twelve documents mentioned in the Plaintiff's application dated September 27, 1974, to be admitted in evidence either by their being tendered in evidence (in respect of those which do not require formal proof) or by their being admitted by the Defendants (regarding their authenticity) or by their formal proof in the manner indicated above. Since the Plaintiff was negligent in not proving those documents or tendering them in evidence during the course of the statement of the next friend of the Plaintiff, the documents mentioned above shall be admitted in evidence conditional on Plaintiff paying to the counsel for the Defendants Rs. 50/ - as costs. The order of the trial Court refusing adjournment for the production of the Plaintiff as his own witness or permitting the Plaintiff to appear as his own witness 'at this stage at which the prayer was made is upheld. Parties are left to bear their own costs. The trial Court record should be sent back immediately. The parties are directed through their counsel to appear before the trial Court on January 12, 1976.