I think I found the judgement, it is a judgment of PATNA HIGH COURT
Patna High Court
Pravesh Kumari And Ors. vs Rishi Prasad And Ors. on 19 August, 1985
Equivalent citations: AIR 1986 Pat 315, 1986 (34) BLJR 221
Author: S A Ahmad
Bench: S Sandhawalia, S A Ahmad
JUDGMENT
S. Ali Ahmad, J.
1. The plaintiff-appellants filed a suit for declaration of title with respect to the suit property and that the defendants have no right and title over the same. The defendants filed written statement denying the claim of the plaintiff-appellants. In view of the order that I intend to pass, it is not necessary to mention facts in any detail. All that need be said is that the plaintiff was examined as P.W. 13 after 12 witnesses on his behalf had already been examined. It further appears that the plaintiff had not taken leave to appear at a later stage as provided under Order XVIII, Rule 3A of the CPC. While appearing as a witness, the plaintiff deposed in support of his case and proved number of documents, including Chowkidari receipts, Exts. 2/A to 2/E. Before the trial Court, a point was raised as to whether the evidence of the plaintiff, who was examined as P.W. 13 carried any weight. The trial Court framed an issue which reads as follows : --
"Whether the evidence of the plaintiff as P.W. 13 carries any weight in view of the mandatory provision of Rule 3A of Order XVIII of the C.P.C."
The trial Court on the basis of the decision reported in 1978 BLJR 600 held that Rule 3A of Order XVIII of the Code of Civil Procedure was mandatory. It, therefore, held that the evidence of P.W. 13 carried no weight and, therefore, it directed the same to be expunged from the evidence. The trial Court, however, after expunging the evidence looked to the other evidence on record, including the exhibits that were proved by P.W. 13. According to the trial Court, the evidence on record proved the case of the plaintiff and, therefore, it decreed the suit.
2. The defendants filed an appeal. The lower appellate Court agreed with the view taken by the trial Court that the provision of Rule 3A of Order XVIII of the CPC was mandatory. It also held that when the evidence of P.W. 13 had been expunged then the exhibits which were proved by P.W. 13 also had to go out of record as they could not be deemed to have been lawfully exhibited. After doing so, the lower appellate court came to the conclusion that there was no evidence on record to support the case of the plaintiff. It therefore, allowed the appeal and set aside the judgment passed by the trial Court.
3. The only point that has been urged before us is that the view taken by the courts below that the provisions of Rule 3A of Order XVIII of the Code of Civil Procedure are mandatory is erroneous. Learned counsel in support of his contention has referred to the Bench decision in the case of Rameshwar Sharma v. Surju Prasad, 1979 BBCJ (HC) 637 wherein it has been held that the provision is directory and that the case reported in 1978 BLJR 600 was wrongly decided. In view of the aforesaid Bench decision, there is no difficulty in accepting the argument of learned counsel. Plaintiff No. 2 was examined as P.W. 13 and had proved the documents. His evidence along with exhibits which he had proved should not have been expunged from the record. I may, however, hasten to add here that I should not be understood to mean that because Rule 3A of Order XVIII of the CPC is directory in nature, therefore, the same need not be observed. It must be observed. But its non-observance in all cases should not lead to the extreme penalty of expunging the evidence which has already been recorded.
4. Since I have held that the evidence of P.W. 13 along with the exhibits that he proved will have to be considered, the only course left open now is to allow the appeal and remit the same to the lower appellate court for a fresh decision in accordance with law. Since no one has appeared to oppose the appeal, I would make no order as to costs.
S.S. Sandhawalia, C.J.
5. I agree.