CGHC010012962025 2026:CGHC:37980 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 47 of 2025 1 - Khorbaharin W/o Radhelal Aged About 69 Years Caste - Dhuri, R/o Village Kormi, Police Station Chakarbhatha, Tahsil Bilha, District Bilaspur Chhattisgarh (Defendant No. 1) 2 - Saraswati Bai W/o Shatruhan Aged About 61 Years Caste - Dhuri, R/o Village Nagpura, Police Station Chakarbhatha, Tahsil Bilha, District Bilaspur Chhattisgarh (Defendant No. 2) 3 - Bhagwati Bai W/o Kishun Aged About 59 Years R/o Village Kormi, Police Station Chakarbhatha, Tahsil Bilha, District Bilaspur Chhattisgarh (Defendant No. 3) 4 - Banvasa Bai W/o Ramji Aged About 56 Years Caste - Dhuri, R/o Village Darrighat, Police Station And Tahsil Masturi, District Bilaspur Chhattisgarh (Defendant No. 4) ... Petitioner(s) versus 1 - Baburam S/o Late Kejaram Aged About 63 Years R/o Village Darrighat, Police Station And Tahsil Masturi, District Bilaspur Chhattisgarh (Plaintiff) 2 - State Of Chhattisgarh Through Collector, District Bilaspur Chhattisgarh (Defendant No. 5) ... Respondent(s) (Cause title is taken from the CIS) ------------------------------------------------------------------------------------------------------------------ For Petitioners : Shri Ram Kumar Tiwari and Shri Prashant Pathak, Advocates For Respondent/State : Shri Ashutosh Tiwari, PL For Respondent-1 : Shri Manas Bajpai, Advocate ------------------------------------------------------------------------------------------------------------------ Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 24.08.2026 1. This petition under Article 227 of the Constitution of India has been preferred by the defendants/petitioners challenging the order dated Wp227 47 of 2025 2 19.11.2024 (Annexure P/2) passed by the learned 6th Civil Judge, Junior Division, Bilaspur (C.G.) in Civil Suit No. (A)57/2018, whereby the learned trial Court has declined to permit the defendants/petitioners to adduce the evidence of one Radhe Lal Dhuri and has further held that the affidavit filed by him under Order XVIII Rule 4 of the Code of Civil Procedure (Annexure P/1) cannot be taken on record. 2. Learned counsel for the petitioners would submit that petitioners are the defendants before the learned trial Court, where the respondent No. 1/plaintiff is prosecuting a suit for declaration of title, permanent injunction and also for possession of the suit land Kh. No. 204/25 (204/18), area 0.809 Hectare, situated at village-Darrighat, Tahsil Masturi, District Bilaspur. The plaintiff is claiming that the suit land was recorded in the name of his father and the father’s name of the defendants No. 1 to 3. The father of the plaintiff had purchased the suit land after alienating his other property of village Birgaon, in the name of father of the defendants. In the year 2000-2001, when the plaintiff had gone to earn his livelihood, the defendants had got executed a nominal sale deed in their favour from his father and got their names mutated in the revenue records. He would further submit that the defendants have duly contested the suit and filed their written statement, denied all the allegations made in the plaint, and claimed that late Keja Ram had purchased the suit land from his own income and he sold the suit land to the defendants No. 1 to 3 through a registered sale deed dated 09.09.2016 and they have paid the entire sale consideration. He would further submit that issues have been framed by Wp227 47 of 2025 3 the learned Trial Court and proceeded for recording evidence of the parties. It is also argued that the plaintiff’s evidence has been closed on 10.04.2023 and thereafter the case was fixed for the defendant’s evidence. Thereafter, the application for amendment in the written statement was allowed, and then the defendants filed the affidavit of the defendant-Khorbahrin and the witness-Ramji Dhuri under Order XVIII Rule 4 of the C.P.C. on 02.02.2024. The cross-examination of Khorbahrin was started on 30.07.2024, but for one or the other reason, her cross- examination has not been completed till 19.11.2024. On 19.11.2024, the defendants filed an affidavit of the defendant’s witness, Radhe Lal Dhuri, under Order XVIII Rule 4 of the C.P.C., which was refused to be accepted and taken on record as the examination-in-chief of the defendant’s witness. He would next submit that the learned trial Court has refused to accept the same on the ground that earlier also sufficient opportunity to file affidavits of the witnesses have been provided to her but she has not filed the same; the cross-examination of Khorbahrin is still not completed, and to fill up the lacunae in her evidence, the affidavit of Radhe Lal Dhuri has been filed. He would further submit that the cross- examination of Khorbahrin is still continuing and the plaintiff can cross- examine her in support of his case, but on this ground the affidavit of Radhe Lal Dhuri, who is a material witness in support of the defendants, cannot be refused. Filing of the affidavit of another witness in the form of chief examination cannot be said to fill up the lacunae of another witness, particularly when the cross-examination of Khorbahrin is continuing. The issue involved in the case relates to property rights, and depriving the Wp227 47 of 2025 4 defendants of producing their material witness would prejudice their defence. Therefore, the impugned order may be set aside, and the affidavit of the witness Radhe Lal Dhuri may be taken on record as a witness for Khorbahrin/defendant No. 1. 3. Per contra, learned counsel for the respondent No. 1/plaintiff opposes the submissions of the learned counsel for the petitioners and would submit that the suit was instituted as early as 20.02.2018 for declaration of title, possession and injunction, and issues were framed on 23.10.2018. The plaintiff had submitted his list of witnesses on 29.11.2018 and filed affidavit evidence under Order XVIII Rule 4 CPC on 07.03.2019, whereas the plaintiff's evidence, which commenced on 22.04.2019, ultimately concluded on 10.04.2023. Thereafter, the defendants repeatedly sought time for filing their list of witnesses and for adducing evidence. Filing of the witness list is mandatory as provided under Order XVI Rule 1 of C.P.C., and the party cannot be permitted to adduce further evidence of witnesses, who were not cited as witnesses in the list of witnesses, without leave of the Court. 4. In the present case, there is no leave sought by the defendant No.1. Despite several opportunities and adjournments granted by the trial Court, the defendants did not disclose the proposed witness Radhe Lal Dhuri in their witness list and, after commencement of the cross- examination of defendant No.1 Khorbaharin, sought to introduce his affidavit on 19.11.2024. It is further submitted that Radhe Lal Dhuri is the Wp227 47 of 2025 5 husband of defendant No.1 and the petitioners, by filing his affidavit at such a belated stage, were seeking to fill up the lacunae and improve their case on the basis of facts which had emerged during the cross- examination of defendant No.1. Thus, the trial Court was fully justified in refusing to take such affidavit on record, particularly when the petitioners themselves had stated that the necessity of producing the said witness had arisen in view of the facts elicited during the cross-examination of Khorbaharin. He would further submit that conduct of the petitioners throughout the proceedings demonstrates that they have repeatedly delayed the trial by seeking adjournments on one ground or another. After the closure of the plaintiff's evidence, the defendants sought repeated time between May, 2023 and February, 2024 for filing their witness list and affidavit, and thereafter also sought adjournments on several dates during the recording of their evidence, resulting in imposition of costs by the learned trial Court. Even after commencement of the examination of defendant No.1, the cross-examination remained pending for a considerable period on account of the petitioners' repeated requests for adjournment. It is, therefore, submitted that the impugned order has been passed by the learned trial Court in the exercise of its discretion to prevent further prolongation of the proceedings and does not disclose any patent error or grave injustice so as to justify exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. Wp227 47 of 2025 6 5. Relying upon the principles laid down by the Hon'ble Supreme Court in “Salem Advocate Bar Association (Tamil Nadu) v. Union of India” AIR 2005 SC 3353, “Noor Mohammed v. Jethanand” 2013 (5) SCC 202, learned counsel would further submit that expeditious disposal of civil proceedings is an integral facet of access to justice and that unnecessary and routine adjournments cannot be permitted, and prayed for dismissal of the petition. 6. I have heard learned counsel for the parties and gone through the pleadings and documents annexed thereto. 7. Having heard learned counsel for the parties and upon perusal of the material available on record, this Court finds that the controversy involved in the present petition is confined to the question as to whether the learned trial Court was justified in declining to take on record the affidavit of Radhe Lal Dhuri filed by the defendants under Order XVIII Rule 4 of the C.P.C. It is not in dispute that the plaintiff's evidence had already been closed and the case had proceeded to the stage of defendants' evidence. The defendants had filed their affidavit evidence, and the cross-examination of defendant No.1,Khorbahrin had commenced on 30.07.2024 and was still continuing when the affidavit of Radhe Lal Dhuri was tendered on 19.11.2024. Thus, the evidence of the defendants had not been closed, and the trial was still at the stage of recording the defendants' evidence. Radhe Lal Dhuri is stated to be the husband of defendant No.1 and the defendants contend that he is a Wp227 47 of 2025 7 material witness in support of their defence concerning the transaction of the suit land. 8. It is true that under Order XVI Rule 1 of the C.P.C., the parties are required to submit a list of witnesses within the prescribed time and a witness who is not included in such list ordinarily cannot be produced without obtaining the permission of the Court under sub-rule (3) thereof. However, the provisions relating to production of witnesses are essentially procedural in nature and are intended to ensure orderly conduct and expeditious disposal of the trial. Such procedural requirements cannot be applied in a manner so as to altogether deprive a party of an opportunity to lead material evidence, particularly when the stage of evidence is still continuing, and no irreversible prejudice is likely to be caused to the opposite party. 9. In the present case, the affidavit of Radhe Lal Dhuri was sought to be filed before closure of the defendants' evidence, and the plaintiff would have a full and effective opportunity to cross-examine the said witness. Therefore, the mere fact that the proposed witness was not earlier disclosed in the witness list or that sufficient opportunities had been granted to the defendants, cannot, by itself, constitute a ground to permanently shut out the proposed evidence without examining whether his evidence is necessary for an effective adjudication of the controversy. 10. The reason assigned by the learned trial Court for declining the affidavit appears to be that, since the cross-examination of defendant Wp227 47 of 2025 8 No.1 Khorbahrin was in progress, the affidavit of Radhe Lal Dhuri had been filed to fill up the lacunae disclosed during her cross-examination. In the considered opinion of this Court, merely because the affidavit of an additional witness is sought to be produced after commencement of the cross-examination of another witness, it cannot necessarily be presumed that the party is attempting to fill up lacunae in the evidence of the earlier witness. Each witness may depose regarding facts within his own knowledge and the evidentiary value of such testimony is a matter to be tested during cross-examination and appreciated at the stage of final adjudication. The apprehension that the defendants may seek to improve their case can adequately be addressed by affording the plaintiff an opportunity to cross-examine the witness. The Court is required to strike a balance between preventing dilatory tactics and ensuring that a party is not deprived of a fair opportunity to substantiate its defence in a suit involving valuable rights over immovable property. 11. No doubt, the record indicates that the defendants had sought adjournments on several occasions and the learned trial Court was justified in being concerned about further delay in a suit instituted in the year 2018. Nevertheless, the object of procedural law is to advance the cause of justice and not to defeat it on technical grounds. The earlier delay on the part of the defendants can be appropriately compensated by imposing reasonable costs and by directing that the evidence of Radhe Lal Dhuri shall be recorded without granting unnecessary adjournment. When the defendants' evidence itself has not been closed, and the Wp227 47 of 2025 9 proposed witness is sought to be examined before conclusion of that stage, refusal to permit his evidence may result in shutting out a material part of the defence and may cause greater prejudice than the inconvenience caused by permitting his examination. 12. In the peculiar facts of the present case, this Court is of the considered view that the learned trial Court ought to have afforded the defendants an opportunity to adduce the evidence of Radhe Lal Dhuri, subject to payment of appropriate costs and subject to the plaintiff's right to cross-examine him. 13. Consequently, the impugned order dated 19.11.2024 deserves to be set aside to the aforesaid extent, and the petition is liable to be allowed. 14. In the result, the petition is allowed and the impugned order dated 19.11.2024 (Annexure P/2) passed by the learned 6th Civil Judge, Junior Division, Bilaspur (C.G.) in Civil Suit No. (A)57/2018 is hereby set aside. 15. The learned trial Court is directed to take on record the affidavit of Radhe Lal Dhuri filed under Order XVIII Rule 4 of the C.P.C. and permit him to be examined as a witness on behalf of the defendants, subject to payment of costs of Rs. 5,000/- to the plaintiff/respondent No.1, before the learned trial Court. 16. The plaintiff shall be afforded full opportunity to cross-examine the said witness. The defendants shall ensure the presence of the witness on Wp227 47 of 2025 10 the date fixed by the learned trial Court and shall not seek unnecessary adjournment. 17. The learned trial Court is directed to proceed with the suit expeditiously and endeavour to conclude the trial at the earliest, in accordance with law. No order as to costs, except as directed above. Sd/- (Ravindra Kumar Agrawal) JUDGE padma Digitally signed by V PADMAVATHI Date: 2026.08.31 11:06:15 +0530