Arun Popat Darekar v. Valuba Pandurang Urade

12. Vandana Balasaheb Urade Age: 53 yrs, Adult, Respondent Nos. 1 to 5 and 10 to 12 residing at: Devgaon, Taluka: Niphad, District: Nashik Respondent No. 6 R/a: Kasli, Taluka: Kopargaon, District: Ahmednagar Respondent No. 7 R/a: Yesgaon, Taluka: Kopargaon, District: Ahmednagar Respondent No. 8 R/a: Neurgaon, Taluka: Yevla, District: Nashik Respondent No. 9 R/a: Kolhar, Taluka: Rahta, District: Ahmednagar

13. Balasaheb Eknath More Age: Adult,

14. Ashabai Eknath More

15. Janyabai @ Sitabai Eknath More Respondent Nos. 13 to 15 Residing at: Devgaon, Taluka: Niphad, District: Nashik Mr. V. H. Narvekar, Advocate, for the Petitioners Mr. Narayan Rokade a/w. Mr. Hari Jadhav & Mr. Abhang Suryawanshi, Advocates, for Respondent Nos. 1 to 3 & 5 to 12 CORAM: S. M. MODAK, J. DATE: 25.11.2024 ORAL JUDGMENT

1. Heard Mr. Narvekar, learned Counsel for the Petitioners and Mr. Rokade, learned Counsel for Respondent Nos. 1 to 3 and 5 to 12.

2. In the Suit, the Plaintiffs have challenged two Sale Deeds executed by one Eknath More. They are: - (a) Dated 24.12.2010 executed in favour of Defendant Nos. 1 & 2 as purchasers. (b) Another is also of the same date executed in favour of Defendant No. 3 - Sopan as a purchaser. He is the purchaser of the suit property described at Sr. No. 1b of the plaint which is at page No. 26. Two separate properties are sold. Defendant No.3 - Sopan intended to give evidence before the trial Court and filed an Affidavit of evidence. But it was discarded by the trial Court vide Order dated 01.04.2022 on the objection taken by the plaintiffs that “defendant No.2 - Sunil has already given evidence for himself and on behalf of Petitioners - Arun and Sopan”. This Order is the subject matter of challenge in this Writ Petition. Background facts.

3. The parties have completed their pleadings. There are two rival claims. According to the Plaintiffs:-

(i) Their predecessor-in-title - Pandurang has purchased both the suit lands from one Eknath More vide registered Sale Deed dated 31.08.1989.

(ii) Said Pandurang expired on 22.04.2014 and Plaintiffs are his heirs.

(iii) Pandurang has bequeathed one of the suit lands bearing CTS

(iv) When Plaintiffs proceeded to enter their names on revenue record, they came to know suit lands are already standing in the name of Defendant Nos. 1 to 3 on city survey record and it is on the basis of two Sale Deeds dated 24.12.2010.

(v) That is how they have instituted Civil Suit before the Court of

4. The purchasers, as per those two Sale Deeds, Defendant Nos. 1 to 3 have filed their Written Statements. Sum and substance of their averments is: - (a) Said Eknath More has orally agreed to sell one land to Popat who is father of Defendant Nos. 1 and 2 and other land to the Defendant No. 3 in the year 1988. (b) Part consideration was also paid. They have constructed/ re-constructed house therein.

(c) Subsequently, said Eknath More has executed registered Sale

5. On this basis, the Suit proceeded for trial. Plaintiffs finished their evidence. Later on, it is the turn of Defendants. The details are as follows: - (a) Defendant No. 2 led evidence for himself and on behalf of Defendant Nos. 1 & 3 as Power of Attorney Holder. He was cross examined. His evidence is on page No. 70 and cross-examination is on page No. 74. In the Affidavit of his examination-in-chief, he has referred about the oral transaction. During his cross examination, he has confirmed the fact that he is leading the evidence for and on behalf of Defendant Nos. 1 & 3 and aware of transaction with Defendant Nos. 1 to 3. He has also clarified about the total consideration and it’s payment on this background. (b) After his evidence was over, Defendant No. 3 filed his Affidavit. It was objected by the Plaintiffs. Trial Court discarded the evidence vide Order dated 01.04.2022 which is challenged by Defendant No. 3. Consideration.

6. The issue needs to be decided from two perspective. First, considering the provisions of O. XVIII, Rule 3-A of the CPC and secondly, by considering the provisions of O. III of the CPC. For ready reference, the provisions of O. XVIII, Rule 3-A of the CPC are quoted: - “[3-A. Party to appear before other witnesses.-Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.]” Learned trial Judge has also referred this provision in para No. 4 and observed the same is not applicable. Rightly so because it provides liberty of party to the Suit to give evidence after his witness is examined and that too with the permission of the Court. This is not the situation in this Writ. Defendant even though offered himself, he is Defendant No. 3 that is party to the Suit. The issue needs to be decided in the context of “right of a party to the Suit to give evidence even though another Defendant has given evidence not only for himself but for Defendant No. 3 also”.

7. It is undisputed fact that Defendant No. 3 has never informed to the trial Court that he also wishes to give evidence even though Defendant No. 2 has given evidence as his Power of Attorney also. If we will insist on this compliance, then certainly the Defendant No. 3 has lost the right of giving independent evidence.

8. But there is another angle, as submitted on behalf of learned Counsel for the Petitioners. It is in respect of knowledge of Defendant No. 2 about the transaction and that of Defendant No. 3 in respect of transaction. For considering this aspect, the answers given by Defendant No. 2 during cross-examination and knowledge of Defendant No. 3 about transaction are relevant. The trial Court observed “the Defendant No. 3 wants to fill up lacuna in the evidence of Defendant no. 2 and therefore, discarded the evidence”.

9. But as said above, there is one more angle for looking to the issue apart from the angle expressed by the trial Court. One cannot dispute about the answers given by Defendant No. 2 during cross-examination. But when we had a look to the Affidavit of evidence filed by Defendant No. 3, we can certainly say that there are certain facts about the transaction so to say about oral sale of year 1988 which was within the knowledge of Defendant No. 3 only. Party to the Suit may not be aware of each and every aspect. Even ordinary prudence does not warrant. For example - witness to any document is not expected to know about the contents of document. This aspect was not considered by the trial Court.

10. Mr. Narvekar, learned Counsel for the Petitioners relied on the observations made in the case of Janki Vashdeo Bhojwani & anr. vs. Indusind Bank Ltd. & ors., reported in (2005) 2 SCC 217. It was observed that Power of Attorney can depose only in respect of facts done by him as a Power of Attorney and in respect of facts within his personal knowledge. Defendant No. 2 as a Power of Attorney is not expected to depose facts which are not within his personal knowledge.

11. If Defendant No. 3 is not given an opportunity to lead evidence and the Suit is decided on the basis of available evidence, then he will loose the opportunity. At the same time, the Plaintiffs will certainly gets an opportunity to cross examine him on all aspects. So I am inclined to set aside the impugned Order.

12. Considering the facts and circumstances of this case, I am inclined to allow the Petition but by imposing costs. It is for the reason of inaction on the part of Defendant No. 3.

13. In view of the above, the following Order is passed. O R D E R

(i) The Writ Petition is allowed.

(ii) The Order dated 01.04.2022 passed by the Court of 3rd

(iii) The Trial Court to proceed with the evidence of Defendant

No. 3 on the basis of Affidavit subject to payment of costs of Rs. 10,000/- to be paid to the Plaintiffs by way of deposit within a period of two weeks from today in the trial Court so as to disburse the aforesaid amount to the Plaintiffs.

(iv) The learned trial Court to proceed with his evidence.

(v) The learned trial Court to decide the Suit as early as possible.

14. The Writ Petition stands disposed of. (S. M. MODAK, J.)