# /Defendants v. Smt. Faiyazan /Plaintiff

- **Citation:** (2006) 1 ILRA 248
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-27
- **Case number:** Ors. Special Appeal No. 702 of 2005
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendants-v-smt-faiyazan-plaintiff-40654
- **Pages:** 3

## Headnote

Code of civil Procedure-Order XVIII rule
2(4) as amended after 1999, Section
151-Permission to examine witnesseven after the closure of evidencesrejection-held not proper-on the ground
of delay as the provision of order 18 rule
2 has been deleted- under inherent
power-the court has every jurisdictionto pass any order-which in the opening
of court is just and proper.

Held: Para 4

Naturally, this fact is a very relevant fact
in the matter and if the evidence of
Ompal throws due light on such issue, it
will definitely facilitate just and proper
adjudication of the dispute between the
parties, which has to be decided by the
court. Obviously, the evidence of Ompal
was relevant and permission of his
examination as a witness could not have
been refused simply because there was
some delay in the proposal made by the
defendants
petitioners
for
such
tendering of the evidence. It should have
also not been refused simply because
sub-rule (4) of Rule 2 of Order XVIII
C.P.C.
had
been
deleted
in
1999
amendment from the Code. The principle
of law laid down by the apex court and
otherwise also under the inherent power
of the Court, as enshrined under Section
151
C.P.C.,
the
court
has
every
jurisdiction to pass any such order,
which in its opinion appears to be just
and proper for proper dispensation of
justice to the parties. Accordingly, the
prayer of the petitioners to the extent it
was made for examining the witnesses
Ompal was quite justifiable. The other
witness Jitendra, who is the scribe of
sale deed and is also relevant witness,
must be examined and permission for his
1 All] Kamal Singh and others V. Smt. Faiyazan
249
examination should be granted along
with Ompal.
Case law discussed:
2005(3) PWC (S.C.) 2996 relied on

## Text

248 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
12. A Division Bench of this Court
also, following large number of the Apex
Court Judgments, in the case of District
Judge, Baghpat Vs. Anurag Kumar and
Ors. Special Appeal No. 702 of 2005
decided on 31.05.2005, held as under:

"Appointments
made
in
contravention of the statutory provisions
remain in executable."

13. In the present case the petitioner
has not claimed regularization under any
statutory provision. The Government
Order dated 3.2.1992 filed by the
petitioner as Annexure 8 to the writ
petition is of no help to the petitioner. A
bare perusal of the aforesaid Government
Order shows that it was a one time
measure undertaken by the Government
Order shows that it was a one time
measure undertaken by the Government
to regular persons who were appointed
prior to 11.10.1989 and have worked for
240 days in each year and also completed
three years service. It is inapplicable to
the case of petitioner.

14. In the above circumstances. I do
not find any merit in the writ petition,
accordingly it is dismissed summarily.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 5285 Of 2006

Kamal Singh and others

...Petitioners/Defendants
Versus
Smt. Faiyazan ...Respondent/Plaintiff
Counsel for the Petitioners:
Sri Govind Krishna

Counsel for the Respondent:
Smt. Kamla Mishra
S.C.

Code of civil Procedure-Order XVIII rule
2(4) as amended after 1999, Section
151-Permission to examine witnesseven after the closure of evidencesrejection-held not proper-on the ground
of delay as the provision of order 18 rule
2 has been deleted- under inherent
power-the court has every jurisdictionto pass any order-which in the opening
of court is just and proper.

Held: Para 4

Naturally, this fact is a very relevant fact
in the matter and if the evidence of
Ompal throws due light on such issue, it
will definitely facilitate just and proper
adjudication of the dispute between the
parties, which has to be decided by the
court. Obviously, the evidence of Ompal
was relevant and permission of his
examination as a witness could not have
been refused simply because there was
some delay in the proposal made by the
defendants
petitioners
for
such
tendering of the evidence. It should have
also not been refused simply because
sub-rule (4) of Rule 2 of Order XVIII
C.P.C.
had
been
deleted
in
1999
amendment from the Code. The principle
of law laid down by the apex court and
otherwise also under the inherent power
of the Court, as enshrined under Section
151
C.P.C.,
the
court
has
every
jurisdiction to pass any such order,
which in its opinion appears to be just
and proper for proper dispensation of
justice to the parties. Accordingly, the
prayer of the petitioners to the extent it
was made for examining the witnesses
Ompal was quite justifiable. The other
witness Jitendra, who is the scribe of
sale deed and is also relevant witness,
must be examined and permission for his
1 All] Kamal Singh and others V. Smt. Faiyazan
249
examination should be granted along
with Ompal.
Case law discussed:
2005(3) PWC (S.C.) 2996 relied on

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. Heard learned counsel for the
parties.

2. It has been contended that the
application moved on behalf of the
defendants
petitioners
for
granting
permission to examine three witnesses in
the trial court was refused vide order
dated 20.10.2005 and the revision filed
against the said order by the petitioners
before the District Judge was also
dismissed vide order dated 22.11.2005. In
the application for permission to examine
the witnesses, it was specifically stated
that the witness namely Ompal is a
person, who had lent some amount to the
plaintiff respondent, which she (plaintiff)
paid back to Ompal on 10.10.2000 after
receiving the consideration sum from the
defendants for executing the impugned
sale deed dated 30.9.2000. It is a suit for
cancellation of sale deed dated 30.9.2000
in which several grounds were taken. It
has
also
been
pleaded
that
no
consideration was received in respect of
this transaction of sale by the plaintiff
from the defendants petitioners. In order
to prove the fact that there has been actual
payment of consideration to the plaintiff
by
the
defendants,
the
petitioners
proposed to examine the aforesaid witness
Ompal and for that purpose the prayer
was made in the application. It is further
stated in the said application that since the
knowledge of this fact of repayment of
the lean amount made by the plaintiff to
Ompal,
could be obtained
by the
petitioners only on 5.10.2005, he moved
an application for permission to examine
the witness. The trial court has rejected
his application on the ground that the
evidence of the parties was closed long
back and that there was absolutely no
justification
for
permitting
the
examination
of
the
witnesses.
The
revisional court has held that since after
1999 amendment of the Code of Civil
Procedure in Order XVIII, Rule 2 (4) the
permission could not be granted.

3. Learned counsel relying upon a
case law of Salem Advocate Bar
Association, Tamil Nadu Vs. Union of
India, 2005 (3) AWC 2996 (S.C.) has
argued that even though by virtue of 1999
amendment the provisions of Sub-rule (4)
of order XVIII, Rule 2 C.P.C. has been
omitted yet the discretionary power of the
court to permit examination of the
witness, if found relevant has not been
taken away, Para-33 of the judgment is
important in this regard, which is
reproduced as below: -

"Order XVIII, Rule 2 (4) which was
inserted by Act 103 of 1976 has been
omitted by Act 46 of 1999. Under the said
Rule, the Court could direct or permit any
party, to examine any party or any witness
at any stage. The effect of deletion is the
restoration of the status quo ante. This
means that law that was prevalent prior to
1976 amendment, would govern. The
principles, as noticed hereinbefore in
regard to deletion of Order XVIII, Rule
17 (a), would apply to the deletion of this
provision as well. Even prior to insertion
of Order XVIII, Rule 2(4), by the Court in
its discretion. The provision was inserted
in 1976 by way of caution. The omission
of Order XVIII, Rule 2 (4) by 1999
amendment does not take away Court's
inherent power to call for any witness at
any stage either suo motu or on the prayer
250 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of a party invoking the inherent powers of
the Court/"

4. This Ompal is a witness, who is
said to have received some money from
the respondent plaintiff soon after he had
executed the impugned sale deed in
favour of the petitioners. The evidence of
this witness. If found positive and is
believable, will present before the court a
circumstance, which may facilitate just
and proper adjudication of the matter on
this issue, whether any consideration in
the impugned transaction had actually
passed from the vendee to the vendor.
Naturally, this fact is a very relevant fact
in the matter and if the evidence of Ompal
throws due light on such issue, it will
definitely
facilitate
just
and
proper
adjudication of the dispute between the
parties, which has to be decided by the
court. Obviously, the evidence of Ompal
was relevant and permission of his
examination as a witness could not have
been refused simply because there was
some delay in the proposal made by the
defendants petitioners for such tendering
of the evidence. It should have also not
been refused simply because sub-rule (4)
of Rule 2 of Order XVIII C.P.C. had been
deleted in 1999 amendment from the
Code. The principle of law laid down by
the apex court and otherwise also under
the inherent power of the Court, as
enshrined under Section 151 C.P.C., the
court has every jurisdiction to pass any
such order, which in its opinion appears to
be just and proper for proper dispensation
of justice to the parties. Accordingly, the
prayer of the petitioners to the extent it
was made for examining the witnesses
Ompal was quite justifiable. The other
witness Jitendra, who is the scribe of sale
deed and is also relevant witness, must be
examined
and
permission
for
his
examination should be granted along with
Ompal.

5. In view of the aforesaid, the
petition is allowed and the orders of the
court
below
dated
20.10.2005
and
22.11.2005 are hereby quashed. It is
directed that the witnesses Ompal and
Jitendra, as mentioned in the application
of the defendants petitioners, shall be
permitted to be examined in the trial court
latest between 01.02.2006 to 15.02.2006
and not beyond it. Meanwhile, a certified
copy of this order shall be obtained by the
petitioners and submitted to the trial court
for proceeding with the matter as directed
above. In case, till 15.02.2006 the
witnesses
are
not
examined,
no
permission would be given thereafter for
such examination.

6. The certified copy of this order be
given on due payment to the parties by
30.01.2006.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2005

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 13406 of 1997

Kailash Nath Shukla

...Petitioner
Versus
The Regional Assistant Director (Basic)
VII Region, Gorakhpur and others
 ...Respondents

Counsel for the Petitioner:
Sri S.S. Tripathi
Sri A.P. Tewari

Counsel for the Respondents:
Sri S.G. Hasnain
Sri B.P. Singh