Kartar Singh and Others vs Amarjit Singh and Others

L.N. Mittal, J.—Plaintiffs have filed the instant revision petition under Article 227 of the Constitution of India impugning order dated 08.04.2010 (Annexure P-3) passed by learned Civil Judge (Junior Division), Sirsa, thereby dismissing plaintiffs'' application for examination of defendant-respondent No. 4 as witness on commission.

Plaintiff No. 1 and defendant No. 3 are sons of defendant No. 4 Mangal Singh. Plaintiffs No. 2 to 4 are legal heirs of pre-deceased son of defendant No. 4, whereas defendants No. 1 and 2 are sons of defendant No. 3. Plaintiffs have filed suit assailing consent judgments and decrees allegedly suffered by defendant No. 4 in favour of defendants No. 1 to 3 and seeking declaration that plaintiff No. 1 is owner in possession of the suit land. Plaintiffs moved application Annexure P-1 for examination of defendant No. 4 on commission alleging that defendant No. 4 is aged more than 100 years and he is residing with defendant No. 3 and by misusing the mental state of defendant No. 4, decree has been obtained by sons of defendant No. 3.

The application was opposed by defendants by filing reply Annexure P-2 alleging that the plaintiffs cannot seek examination of the opposite party as witness without consent of the opposite party. It was also denied that defendant No. 4 is aged 100 years.

Learned trial court, vide impugned order Annexure P-3, dismissed the plaintiffs'' application. Feeling aggrieved, the plaintiffs have filed the instant revision petition.

I have heard learned Counsel for the petitioners and perused the case file.

There is no material on record to depict that defendant No. 4 is aged 100 years or that he is unable to attend the Court himself. The application Annexure P-1 moved by the plaintiffs is neither supported by any affidavit nor by any medical evidence or other material on record to substantiate the plea that defendant No. 4 is physically or mentally infirm to attend the Court himself. Consequently, the very basis for moving the application Annexure P-1 is non-existent.

In addition to the aforesaid, the application itself is misconceived because plaintiffs cannot force defendant No. 4 to appear in the witness-box. It is the sweet will of the defendants as to who is to appear in the witness-box on their behalf. It is different matter if any material witness does not appear as witness, adverse inference may be drawn against him, as may be permissible under the law. However, the plaintiffs cannot force defendant No. 4 to enter the witness-box, if he does not want to appear in the witness-box. It may be added that the case is still at the stage of plaintiffs'' evidence and it is still to be decided by defendants whether defendant No. 4 wants to appear as witness or not when the case is fixed for their evidence.

Learned Counsel for the petitioners referred to Order 26 Rule 4-A of the CPC to contend that any person can be examined on commission. However, this provision does not entitle the plaintiffs to force defendant No. 4 to appear as witness.

For the reasons aforesaid, I find no illegality in the impugned order of the trial court. Application Annexure P-1 moved by the plaintiffs-petitioners, which has been dismissed by the trial court by impugned order, is completely misconceived and untenable. The revision petition is devoid of any merit and is accordingly dismissed in limine.