1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 68/2010 WITH APPEAL FROM ORDER NO. 70/2010 Harichandra s/o Kannayalal Yadav, Age 69 years, Occupation : Agriculture, R/o Reheman Gunj, Jalna, Tq. & Dist. Jalna. ...Appellant. (Orig. Defendant.) Versus Hemraj s/o Balchand Bhurewal, Age : 52 years, Occupation : Business and Agriculture, R/o Rajiv Gandhi Nagar, Lalbag, Jalna, Tq. & Dist. Jalna. ....Respondent. (Orig. Plaintiff.) Mr. V.R. Naik, Advocate for appellant. Mr. Rajendra Deshmukh, Advocate for respondent. CORAM : A.V. NIRGUDE, J. Date : 19th January, 2011. ORAL JUDGMENT : 1. Both these appeals from order can be disposed of by this common judgment. Instead of referring the parties by their designations in this Court or in the Court below, I would refer them by their names. Hemraj is plaintiff in Regular civil suit No. 299/2006 and Harichandra is plaintiff in Regular Civil Suit No. 19/2006. It is common ground that Harichandra is owner of the suit land. Hemraj asserted that on 03/06/1999, he agreed to purchase the suit land to the extent of 2 acres from Harichandra. He said, he even got an agreement in writing executed to that effect. He said further that Harichandra put 2 him in possession and that since the land was a tenancy land, he agreed to obtain necessary permission from the revenue authorities to complete the sale deed. It is also his case that time of three months was given to the parties for completing the formalities. On the other hand, Harichandra does not admit the execution of agreement for sale. He said that he is in possession of the land and in the year 2004, he suspected that Hemraj was trying to represent that he was in possession of the suit land to various revenue authorities. He said that in order to warn Hemraj to keep his hands off the property, he sent a legal notice to him. He said, this notice came back unserved. He said, in year 2006 he thought it proper to file a suit for injunction simplicitor. He thus filed Regular civil suit No. 19/2006 and sought permanent injunction against Hemraj to prevent his entry in the suit property. Immediately thereafter Hemraj too filed his Regular civil suit No. 299/2006 for specific performance of the agreement mention of which is made above. The suits thus were tried together and evidence was recorded of both the parties. However, the learned judge of the trial Court committed an error while recording evidence of the parties. Instead of directing the parties to lead their evidence at one time on all issues involved, he allowed the parties to lead evidence on two occasions, in two different suits. This error on the part of the trial Court while trying the suits, has escaped the attention of the learned judge of the first appeal Court. 2 I perused the judgment of the trial court and found that the issues that were framed in these two suits were proper and the parties could have lead evidence only on one occasion to meet the 3 challenges that arose from the issues. Despite this, I found that in Regular civil suit No. 19/2006, the suit filed by Harichandra for injunction, Harichandra recorded his deposition. He also recorded deposition of his witness Vinod. In reply, Hemraj too recorded his deposition along with deposition of his witness Jugalkishor. In Regular civil suit No. 299/2006 (Hemraj's suit for specific performance), only Hemraj and his four witnesses recorded their depositions. The side of Harichandra rightly opted out from repeating what they have already deposed earlier. 3 On perusal of the evidence recorded in both the suits, I found that the learned judge of the trial Court committed a serious error of procedure while recording evidence in Regular civil suit No. 19/2006. As said above, the evidence of four witnesses was recorded in that suit, two from Harichandra's side and two from Hemraj's side. Examination in chief of all these four witnesses were produced on record in the form of affidavits. But the learned judge of the trial Court did not administer oath to the witnesses soon after the witnesses entered the witness box. He did not record verification of their examination in chief. He straightway allowed the other side to cross examine the witnesses. The learned judge of the first appeal Court rightly held that due to this serious error on the part of the trial Court, the trial was vitiated. However, the learned judge of the first appeal Court irred in ignoring the fact that while recording depositions of Hemraj and his witnesses in Regular civil suit No. 299/2006, the learned judge of the trial Court had administered oath to the witnesses when they entered witness box for the first time and the procedure 4 required under Order IV Rule 5 was properly followed. I went through the original record and found that the evidence in Regular civil suit No. 299/2006, the deposition of Hemraj and his witnesses are recorded properly. 4 The learned judge of the first appeal Court rightly set aside the judgments in both the suits and remanded the cases back to the trial Court. He directed the learned judge of the trial Court to rectify the error committed while recording evidence. I think, one must further elaborate as to how error is required to be rectified. I think, the following order would suffice the ends of justice. ORDER a) The appeals are partly allowed. b) The trial Court shall record evidence of Harichandra and his witnesses denovo following the procedure laid down under Order IV Rule 5 giving an opportunity to Hemraj for cross examining them. c) The evidence of Hemraj recorded in Regular civil suit No. 299/2006 shall be read in evidence for deciding the issues between the parties. d) It is further clarified that after following this procedure, there shall be two sets of depositions, one of Hemraj and other of Harichandra. On the basis of this common evidence recorded in both the suits, the learned judge of the trial Court shall dispose of both the suits. e) Needles to add is that the directions of the learned judge of the first appeal Court which gave both the 5 parties opportunity to lead fresh evidence, stands set aside. f) In view of this, civil applications No.5705/2010 and 5707/2010 disposed of. (A.V. NIRGUDE, J.) ts k/ok