Dr. V.K. Muthusamy vs M/s. U.A. Habeen Firm and others

Somasundaram, J.—The petitioner is the plaintiff in O.S. No. 1002 of 1992 on the file of First Additional District Munsif at Erode.

The petitioner filed the said suit against the respondents for recovery of a sum of Rs. 6,790.00 on the foot of a promissory note dated 6-7-

1989. The respondents are contesting the suit. The petitioner during the pendency of the suit, filed LA. 1326 of 1993 under Order 18, Rule 3A of

the CPC before the court below seeking permission to examine himself as a witness last in the suit after examining the other witnesses on his behalf.

The Court below took the view that the petitioner has not given valid reasons for examining himself as a witness last after examining the other

witnesses and consequently, the court below dismissed the I. A. 1326 of 1993. Aggrieved by the said order of the court below, the petitioner has

fled the present Civil Revision petition.

3 Rule 3A of Order 18 reads thus:--

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 own witness at a later stage"".

Order 18, Rule 3A of the Code was introduced by Act 104 of 1976 pursuant to the recommendations in the 54th report of the Law Commission

and the provision was intended to prevent the persistent and notorious practice indulged by litigants in examining other witnesses first and alter

covering up the gaps and lacunae in such evidence, by the examination of the parties themselves later, to substantiate their case. A careful reading

of Order 18, Rule 3A indicates that the party should be examined first and the other witnesses later and if the other witnesses are to be examined

first and the parties should be examined later, the Court should permit the party to so appear as a witness at a later stage. Dealing with the scope

of Order 18, Rule 3A in V. Jayakannan and three others v. V.K. Sampath Alias V.K. Sampathkumar, 1987 TLNJ 340, Chandurkar Chief Justice

has observed as follows:--

Therefore, a party examining itself before other witnesses are examined is the rule. A party examining itself after the other witnesses are examined

is an exception. An exception can be made only for valid reasons. What those valid reasons are will depend on the facts and circumstances of each

case."" .......................................

The obvious purpose of the rule is to do away with the practice which had grown in Indian Courts of examining all other witnesses first and then

the party entering the witness box to fill up all the lacunae which might have been left or to undo the damage which might have been caused by

certain admissions which might have been made by the other witnesses. It adversely affects the opposite party. It is a normal rule of appreciation of

evidence that the substantive evidence in each case is of the party itself and the other witnesses are most of the time treated as witnesses

corroborating the substantive evidence. It was this rule of appreciation of evidence which has now been incorporated in the mandatory provision

by the enactment of Order 18, Rule 3A of the Code of Civil Procedure.

The learned Judge while holding that Order 18, Rule 3A should receive strict construction observed thus:--

In so far as the argument of stringently construing Order 18 is concerned, it has to be realised that if this provision is not construed stringently, the

situation in the case of trial of suits will be the same as it was before the provision was enacted. The obvious result will be that if the pro vision in

Order 18, Rule 3A is not implemented it will defeat the very intent and purpose for which it was enacted.

What is relevant under Order 18, Rule 3A of the Code is that the court should be satisfied that the party who should appear as a witness on his

behalf before the other witnesses in support of his case are examined, is unable to appear and give evidence in support of his case. The reasons

required to be recorded relate to this and if the Court is satisfied with reference to the reasons given by the party as to why he should be permitted

to appear as a witness at a later stage, then the permission can be granted by the Court subject to the recording of reasons in that regard.

Keeping the above principles in mind, let us examine whether the reasons given by the petitioner in the affidavit filed in support of I.A. 1326 of

1993 are valid reasons and whether they can be accepted for granting him the relief prayed for in the said I.A. What the petitioner says in the

affidavit filed in support of I.A. 1326 of 1993 is that he is a practicing Doctor, that his manager and other members of his family are doing money

lending business, advancing loans to third parties on his behalf and that his brother and his manager are looking after the money lending business.

His further case is that his brother and the manager alone advanced the amount to respondents on his behalf and obtained a promissory note from

them and that they alone are aware of the suit transaction. For the reasons stated above the petitioner has prayed for permission of the Court

below to examine his brother and Manager first as witnesses in the suit and then permit him as a witness last if necessary. I am of the view that the

said reasons given in the affidavit filed in support of the said I.A. 1326 of 1993 are not valid and sufficient reasons for granting the relief prayed for

by the petitioner under Order 18, Rule 3A of the Code. It must be remembered that the substantive evidence in each case is that of the party and

the other witnesses are very often examined as witnesses corroborating the substantive evidence of the party. The fact that the petitioner''s brother

and his manager are looking after the money lending business on behalf of the petitioner is not a ground for permitting the petitioner to examine

himself as a witness lost after examining his brother and Manager as witnesses in the suit, What is relevant under O. 18, R. 3A of the Code is that

the petitioner must satisfy the court that he was unable to appear and give evidence in support of his case as a first witness and I am of the view

that the petitioner in the present case has not satisfied the requirements of O. 18, R. 3A of the Code. In these circumstances, the Court below

rightly dismissed the I.A. 1326 of 1993. There is no merit in the Civil Revision Petition and it is liable to be dismissed. However, it is always open

to the petitioner to examine his brother and Manager as witnesses to prove the case put forth in the plaint. This Civil Revision petition is dismissed.

No costs.

Petition dismissed.