Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on NM No. 456/19
Perused NM, reply filed thereto and heard both sides. By this NM the
plaintiffs have prayed to record evidence of Smt. Usha Ramchandra
Katke before cross examination of PW No.1 Rekha Shinde. Ld. Adv.
for the def. no. 2 has submitted that the defendant has no objection
for the same provided the evidence is restricted to the affidavit of
said witness Smt. Usha. Ld. Adv. for the plaintiff submits that such
restriction cannot be imposed on the witness. According to ld. adv.
for the plaintiffs, the application/NM is under Order XVIII Rule 16 of
CPC and in the affidavit it is requested that the witness being a senior
citizen and suffering from various ailments be examined before the
plaintiff. Order XVIII Rule 16 provides for immediate examination of
witness if he is about to leave the jurisdiction of the Court or for
other sufficient cause. From reading of the said provision it is evident
that the witness can be examined at any stage of the suit if he is
about to leave jurisdiction of the Court or for sufficient cause. The
words “sufficient cause” cannot be read in isolation. From conjoint
reading of subrules (1), (2)and (3) of the said Rule 16, the Court is
empowered to examine the witness immediately if he is trying to run
away from the process of Court. As such the instant NM fall under
Order XVIII Rule 3A of CPC. The object of said provision is that the
party shall not be given an opportunity to fill up lacunae in the
evidence of other witnesses and therefore the party has to seek
permission from the Court if he wants to bring witness before his
evidence. In this matter the roznama speaks that the plaintiff has
already filed affidavit of evidence of PW no. 1 on 19.08.2016,
thereafter, the defendants no. 1 and 2 filed application for recording
evidence of def. no. 1, age 99 years, on 12.09.2018, the same was
permitted but said def. no. 1 died on 16.11.2018. In this period of
more than 3 years the plaintiffs never filed application for recording
evidence of witness before plaintiffs. Therefore, mere old age is not a
ground to grant permission under Order XVIII Rule 3A of CPC in the
above circumstances. Therefore, NM No. 456/19 is dismissed.
-- 1 of 1 --