Naveen Chander Kapur vs State & Ors on 22 October, 2021

1. This Chamber Appeal has been preferred by the appellants being
the contesting respondents against the order dated 17th March, 2021
passed by the learned Joint Registrar permitting the attesting witness to
be examined prior to the petitioner.

2. Mr. Peeyoosh Kalra, learned counsel for the appellants/respondents
submitted that under Order XVIII Rule 3A CPC, the party had to appear
as a witness before any other witness on his behalf was examined. It was
submitted that no application had been moved by the

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respondent/petitioner before the learned Joint Registrar to explain why he
wished to examine the attesting witness before he himself was examined.
It is also the contention of the learned counsel for the
appellants/respondents that even the impugned order is silent as to the
reason why the court was allowing the respondent/petitioner to examine
the attesting witness before examining himself. Reliance has been placed
on the decision of the Supreme Court in Niranjan Umeshchandra Joshi
v. Mrudula Jyoti Rao, (2006) 13 SCC 433 and the decision of this court
in Jagdish Prasad v. State, 2015 SCC OnLine Del 14461 to contend that
Section 68 of the Indian Evidence Act, 1872 deals with the mode of proof
of a Will but does not set out the procedure for examination of the
witnesses, which was governed by Order XVIII Rule 3A CPC. It was,
therefore, submitted that the judgments in Walter D’Souza v. Anita
D’Souza, 2014 SCC OnLine Bom 1671 and Harsh Vardhan Lodha v.
Ajay Kumar Newar, [order dated 18th July, 2019 in TS No. 6/2004], cited
by the respondent/petitioner, had no bearing on the matter.

Source: Indian Kanoon

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