Whether court can permit examination of party to suit at subsequent stage?

Learned counsel for the sole respondent, on the other hand, has
opposed the prayer and has placed reliance of the Order XVIII Rule 3-A of the
Code of Civil Procedure, which reads as follows :
“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 on witness at a
later stage.”
It is submitted by the learned counsel for the sole respondent that
since two witnesses have already been examined in presence of the election
petitioner, the election petitioner himself cannot examine as a witness now. It is
submitted that if the election petitioner desired to be examined at a later stage, he
should have filed the application for the same on the same date, but he did not
seek the permission of the Court for his examination at a later stage and allowed
the other witnesses to be examined in his presence. Alternatively, it is submitted
by the learned counsel for the sole respondent that in any event, the election
petitioner should be examined after the examination of all the witnesses.
Having heard the learned counsels for both the parties, I am of the
considered view that the Order XVIII Rule 3-A of the Code of Civil Procedure is
not an absolute bar for examination of party to a suit at a later stage. There is
always a discretion of the Court to allow the party to be examined at the later
stage. Even Section 87 of the Representation of the People Act only states that the
procedure applicable under the Code of Civil Procedure for the trial of the suits
shall be followed by the High Court while trying an election petition, as nearly as
may be. There is no requirement of strict adherence to the provisions of CPC,
while trying an election petition.
In view of the aforesaid discussions, it is directed that the election
petitioner shall be examined in the case as witness on the next date. 
IN THE HIGH COURT OF JHARKHAND AT RANCHI
 E.P No. 11 of 2015

Krishna Nand Tripathi.
 V
Alok Chaurasiya .
CORAM :  MR. JUSTICE H. C. MISHRA

 Dated:19.8.2016.
Citation: AIR 2017 Jharkhand 22

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Whether suit can be dismissed if plaintiff fails to examine himself?

Subsequently, the suit was transferred to the District Court after the
pecuniary jurisdiction of the High Court was enhanced. Vide judgement
dated 7.9.2016, the learned trial court dismissed the suit of the
appellant/plaintiff on the ground that the onus to prove issues No.1, 2 and 3
had been placed on him as he had asserted a right, title and interest in the
suit premises and had sought a decree of declaration, for declaring the sale
deed as null and void but at the same time, he had failed to lead any
evidence in support of his case. Referring to and relying on the provisions
of Sections 101 and 102 of the Indian Evidence Act, 1872 that relate to
burden of proof and prescribe on whom the burden of proof lies, it was held
that unless such a burden is discharged by the party on whom the onus rests
by leading affirmative evidence, the opposite party is not required to prove
his case. It was further observed that the suit for declaration instituted by
the appellant/plaintiff would not be maintainable unless he could prove that
he is entitled to some right in the property and having failed to demonstrate
the same in terms of Section 34 of the Specific Relief Act, 1963 and having
declined to enter the witness box, he would not be entitled to any relief. It
was also noted that contrary to the contention of the appellant/plaintiff, the
respondents/defendants had not made any admissions with regard to the
right, title or interest in respect of the suit premises for any adverse inference
to be drawn against them.
13. Learned counsel for the appellant canvassed that the trial court had
failed to return any findings on the plea that the Sale Deed executed by
defendant No.5 in favour of the respondent No.1/defendant No.1 was a
forged and fabricated document.
14. On perusing the impugned judgment, it transpires that the aforesaid
plea taken by the appellant/plaintiff was duly considered by the learned trial
court that had observed that as the appellant/plaintiff had failed to prove that
the sale deed had been executed in a fraudulent manner, he is not entitled to
a decree of declaration. This Court is of the opinion that the
appellant/plaintiff having failed to enter the witness box without offering
any justification for staying away, the trial court had every reason to
conclude that an adverse inference ought to be drawn against him. It was for
the appellant/plaintiff herein to prove that the Sale Deed executed by the
defendant No.5 in favour of the respondent No.1/defendant No.1 was a
forged and fabricated document and no amount was paid towards the sale
consideration by the respondent No.1. The said plea was not supported by
the appellant/plaintiff as he elected not to enter the witness box. He did not
state on oath the facts that he had pleaded in the plaint before the trial court.
As the appellant avoided the witness box, he could not be cross-examined by
the other side. This by itself is considered sufficient for rejecting the claim
of the appellant/plaintiff that the transaction of sale between the deceased
defendant No.5 and the respondent No.1/defendant No.1 was a fraudulent
transaction.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
 RFA 950/2016 
HARBHAJAN SINGH .
V
KULDEEP SINGH & ORS 
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
Dated: 06.12.2016.
Citation: AIR 2017 Delhi 52.

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