Dwarka Devi vs Dhani Ram Magotra

This petition has been presented against the order dated 02.02.2001 passed by the Munsiff (SubRegistrar), Jammu whereby two applications

have been allowed viz. application filed by the plaintiff/respondent under order 18 Rule 3A of the CPC seeking permission of the court to record

the statement of the plaintiff after the statement of his witnesses and another application filed by the defendant seeking permission of the court to file

documents which could not be filed at the appropriate stage. Court vide impugned order dated 02.02.2001 granted permission to the plaintiff for

recording his statement after the statement of his witnesses are recorded and also granted permission for bringing on record the documents.

The impugned order has been challenged by the petitioner/defendant aggrieved of the permission granted to appear as witness after recording

the tements of plaintiffs witnesses, allowing the application filed under Order 18, Rule 3A on that the trial court has granted permission without

recording reasons which was obligatory upon the court and unless reasons are recorded, order of the court is not in accordance with law and thus

unsustainable. Mr Jain learned counsel for the respondentplaintiff in rebuttal has submitted that the petitioner/defendant has not filed the objections

to his application before the trial court, therefore, it was not obligatory upon the court to record any reasons as contemplated in Rule 3A, and that

Rule 3A is directory in nature and not mandatory and on this account also, the trial court if has not recorded reasons has not committed any

illegality. In support of his this plea, he has relied upon the judgements reported in AIR 2000 Bombay, 384, titled Sanjay Narayan rao Barde and

another Vs. Sau Vimal Keshaorao Bairam and others.

Heard learned counsel for the parties.

Of course, if opposing party does not file objections and counsel representing such party makes statement at the bar to that effect, in that event,

the trial court is not under obligation to record the reasons. The court should record the concessional statement of the opposing counsel/party in the

order and proceed to pass appropriate order.

Before dealing with the proposition of law contained in Rule 3A, Order 18 CPC, for convenience, it is reproduced and reads as under:

3A: 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

this behalf has been examined unless the court, for reasons to be recorded, permits him to appear as his own witness at a later stage.

This provision of law envisages that the court has the power to grant such permission and allow the plaintiff to appear as his witness after his

witnesses have been examined. But while granting this permission court has to record the reasons for according such permission which is evident

from the words used as ""unless the court, for reasons to be recorded, permits him to appear as his own witness at a later stage"". The trial court has

simply granted permission without recording reasons, though the reasons may be available in the application filed by the plaintiff. Order unless

made in accordance with law cannot be maintained. Trial court even under such circumstances where there is no rebuttal even filed by the

opposing party has to record reasons as contemplated by law. The reasons are required to be recorded to spell out the necessity and justification

for granting permission.

I have gone through the judgements cited by the learned counsel for respondent which are not relevant on the point and are distinguishable.

Learned counsel could not make out from the judgement that under such circumstances, trial court is not under obligation to record reasons as

mandated by law, irrespective of the provisions being directory or mandatory.

For the aforesaid reasons, impugned order to the extent it relates to the permission granted under order 18 CPC Rule 3A is set aside. Trial

court is at liberty to pass fresh order in the application filed under order 18 Rule 3A CPC. Parties to appear before the trial court on 07.12.2001.