1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 2974 OF 2008 (Baban Uttamrao Jagtap (Deshmukh) through LRs. vs. Durgasingh Undaraji Rathod ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. NOVEMBER 14, 2008. Heard finally by consent of Shri Kasat, learned counsel for the petitioners and Shri Motghare, learned counsel for the respondents. The challenge by the petitioner – plaintiff is to the order dated 21.6.2008 passed by the Civil Judge, Junior Division, Ner, below Exh. 81, rejecting his prayer to permit the petitioner Aruna @ Anjali wd/o Baban Jagtap to enter witness box. The prayer has been rejected on the ground that provisions of Order 18, Rule 13(a) of Civil Procedure Code, are mandatory and if plaintiff wanted to examine herself, she should have taken permission of trial Court before hand i.e. before permitting her other witnesses to enter witness box. Shri Kasat, learned counsel points out that suit was for removal of encroachment and for possession in mesne profit on the basis of title, filed by husband of the petitioner. Thereafter, he expired 2 and his minor son as also Aruna were brought on record as his legal heirs. Aruna executed a Power of Attorney in favour of brother of Baban and said brother of Baban entered the witness box. He tendered his evidence and was cross examined and no objection was raised at any point of time to this arrangement before the Court. Thereafter, other witnesses were examined and the respondent – defendant also examined himself and his witnesses. At the stage of final arguments before the trial Court, the respondent took objection that adverse inference should be drawn as the original plaintiff has not entered the witness box and her Power of Attorney was not competent to depose about the facts in the plaint. Therefore, by way of abundant precaution, she has moved an application at Exh. 81 seeking leave to permit the petitioner Aruna to enter witness box. Shri Kasat, learned counsel contends that in such circumstances, Order 18, Rule 3(a) of CPC cannot be held to be mandatory and in the interest of justice, permission as sought for ought to have been granted. Shri Bade, Advocate holding for Shri Motghare, learned counsel for the respondent contended that there was no question of raising objection earlier because it was open to the 3 petitioner to enter witness box or then to examine any other witnesses on her behalf. He further states that if the petitioner wanted to enter witness box, the petitioner ought to have reserved that right by intimating the Court accordingly. He states that as that has not been done, permitting the petitioner at this stage to enter the witness box is bound to prejudice the case of present respondent. He, therefore, states that the impugned order requires no interference in writ jurisdiction. It is apparent that objection of non examination of plaintiff has been raised at the stage of final arguments and by way of abundant precaution, Aruna has moved the application at Exh. 81. It is also apparent that application has been moved after the respondent – defendant has disclosed his defence and evidence of all witnesses has come on record. However, considering the fact that original petitioner – Baban (husband of petitioner Aruna) expired after filing of suit and she had given Power of Attorney, her intention to put her case through her brother-in-law is apparent. In view of said Power of Attorney, it cannot be said that brother of Baban was examined as witness but it was apparent that he was examined for and on behalf of Aruna as her agent/ representative. The 4 Court below, therefore, has erroneously held that provisions of Order 18, Rule 3(a) of CPC were violated in this matter. In any case, in these circumstances, when the objection was raised at the stage of final arguments, the interest of justice demanded that the petitioner ought to have been given opportunity to tender her evidence. The respondent – defendant will get an opportunity to cross examine her and he can also be given an opportunity to lead additional evidence in defence if the respondent so wants. The trial Court, therefore, can take appropriate measures so that no prejudice is caused to the respondent by such late examination of the petitioner – Aruna. However, that cannot be the reason to deny permission to the petitioner - Aruna to enter witness box. The procedure is only hand made of justice. The substantive rights of the petitioner cannot be declined because of adherence to such procedure. In the circumstances, the impugned order dated 21.6.2008 passed by the Civil Judge, Junior Division, Ner, below Exh. 81 in RCS No. 22 of 2005 is hereby quashed and set aside. The petitioner – Aruna is permitted to enter witness box. The respondent – defendant is free to cross examine her. After her evidence, if the respondent – defendant 5 finds it necessary to lead any further / additional evidence in defence, the respondent – defendant is free to do so. Writ Petition is disposed of. Rule accordingly. No order as to costs. JUDGE *GS.