Page No.# 1/5 GAHC010205672023 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/300/2023 SAJDA TABASUM AND ANR W/O IRSHAD ALI, R/O NEW COURT ROAD, AZAD COLONY, P.O.-HIJUGURI, P.S.-TINSUKIA, DIST-TINSUKIA, ASSAM 2: MD. IRSHAD KHAN S/O LATE KAMRUZAMA KHAN R/O NEW COURT ROAD AZAD COLONY P.O.-HIJUGURI P.S.-TINSUKIA DIST-TINSUKIA ASSA VERSUS IMRAN KHAN S/O LATE ABDUL SUKUR KHAN, R/O AZAD COLONY, P.O.-HIJUGURI, P.S.- TINSUKIA, DIST-TINSUKIA, ASSAM Advocate for the Petitioner : MR S PARASHAR, Advocate for the Respondent : MR B K MISHRA, MR. S ISLAM,A R MONDAL,MR A HAWARI BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 01.04.2026 Heard Mr. S. Parashar, learned counsel for the petitioners. Also heard Mr. Page No.# 2/5 S. Islam, learned counsel for the respondent. 2. In this petition, under Article 227 of the Constitution of India, the petitioners have challenged the order dated 21.06.2023 passed by the learned Munsiff No. 1, Tinsukia in Title Suit No. 121/2021. 3. It is to be noted here that vide impugned order dated 21.06.2023, the learned trial court had allowed the petition No. 5694/22 filed by the plaintiff side for cross-examination of PW-1 then to file evidence of other witnesses. 4. Mr. S. Parashar, learned counsel for the petitioners, submits that the petitioner is the defendant in the suit which has been filed for eviction. In the said suit, the petitioners herein as defendants had entered appearance and contested the suit by filing written statement. After settlement of the issues, the plaintiff, on 09.12.2022, had filed the evidence on affidavit of PW1 and also sought time to file the examination-in-chief of the other PWs. Thereafter, on 17.01.2023, the plaintiff had filed an application to have the cross examination of the PW1 and then to present the examination-in-chief of the other PWs. 4.1. Mr. Parashar also submits that the said application was objected to by the petitioner by filing written objection. However, vide the impugned order dated 21.06.2023, the learned Trial Court had allowed the aforesaid petition. Mr. Parashar has also drawn the attention of this court to the Trial Courts and First Appellate Subordinate Courts (under the Gauhati High Court) Case Management Rules, 2007, more particularly, Rule 6 and submits that the interpretation given to the aforesaid Rule 6 is an erroneous interpretation and the same would be against the very essence of holding a fair trial. Further submission of Mr. Parashar is that if the interpretation given is sustained, then the same will adversely affect a fair trial whereby prejudice would be caused to the adverse Page No.# 3/5 party inasmuch as upon cross-examination, the case which would be the projection of the adverse party would be exposed giving a chance to fill up the lacuna. 4.2. To a pointed query of this court, Mr. Parashar, however, fairly submits that there is no provision in CPC or in the Evidence Act expressly prohibiting the course of action adopted by the learned trial court. 5. Per contra, Mr. S. Islam, learned counsel for the respondent, has supported the impugned order. He submits that in absence of any provision in the statute, it cannot be said that the course of action so adopted by the learned trial court is wrong. He therefore, contended to dismiss the petition. 6. Having heard the submission of learned counsel for the parties this court has carefully gone through the petition and also the documents placed on the record. And also gone through the impugned order, which is extracted herein below from ready reference: “ ORDER 21/06/2023. Both parties are represented. I have heard plaintiff side, defendant side although present but did not make his submission. Plaintiff side vide petition No. 5694/22 prayed for cross examination of PW-1 then to file evidence of other witnesses. But defendant side raised objection stating that law does not bar plaintiff from adducing evidence altogether & get cross examination done. I have considered the submission made by the plaintiff side as well as petition and objection of parties. Law does not bar plaintiff from cross examination of PW1 first and to submit other evidences. Hence prayer of Page No.# 4/5 plaintiff is allowed. Fix 14/08/2023 for cross examination of PW1. SD/- Munsiff No 1, Tinsukia.” 7. Admittedly, there is no provision in the Code of Civil Procedure, making it mandatory for filing evidence affidavits for all witnesses in one go in ordinary civil suits under the CPC. In regular civil cases, Order XVIII Rule 4(1) requires parties to file affidavits in lieu of examination-in-chief sequentially starting with the plaintiff after issues are framed, followed by the defendant. Said provision also requires that the copies of such affidavit must be supplied to the opposite party. Rule 4(2) provides that the evidence (cross-examination and re- examination) of the witness in attendance shall be taken either by the Court or by the Commissioner appointed by it. 7.1. This rule applies on a per-witness basis. However, there is no strict requirement that all of the plaintiff's witnesses must file their affidavits simultaneously before any cross-examination begins. Usually the process is sequential. If one witness has filed his affidavit, and if he appears for cross- examination, such examination shall be completed and thereafter, the next witness can follow. 7.2. Notably, Order XVIII Rule 1 & 2 CPC provides the general practice. As per this practice the plaintiff leads evidence first. The plaintiff (or their witnesses) can be examined one by one, when witnesses are available at different times. 7.3. However, commercial suits are exception to aforesaid proposition. Under amended Order XVIII Rule 1A (Commercial Courts Act, 2015), both parties must file affidavits of all proposed witnesses simultaneously at the first Case Page No.# 5/5 Management Hearing. To file additional evidence, the parties have to obtain court permission showing sufficient cause. The procedure is that the parties first submit the list of witnesses under Order XVI Rule 1. Affidavits follow under Order XIX Rules 1-3, limited to deponent's personal knowledge, in chronological order, with documents marked as exhibits. 8. Though the petitioners herein apprehend prejudice only on the ground that if such a practice is allowed the respondent herein will be able to fill up lacuna. But, such apprehension is not founded upon any proposition of law. It is worth mentioning this context that there are some provisions in the CPC, such as Order XVI Rule 1 and 3 CPC; and Order XVI Rule 1A CPC, which permits examination of further witnesses, names of whom finds no mention in the list of witnesses furnished to the court earlier. Under such circumstances and in view of the existence of such statutory provisions, the apprehension of the petitioner cannot be said to be backed by any reason. 9. However, if such a situation arises in future then the petitioner will be at liberty to approach the learned trial court by filing appropriate application. JUDGE Comparing Assistant