G.K. Rao vs A. Henry

The above revision is filed by the defendant petitioner herein questioning the correctness and legality of the order of the XVI Judge, City Civil

Court, Madras in 1. A. No. 794 of 1980 in O. S. No. 8043 of 1983.

For the disposal of this civil revision petition, certain facts are necessary. The respondent herein filed the suit O. S. No. 804.3 of 1983 before

the City Civil Court, Madras seeking ejectment of the petitioner herein and also for damages. Written statement was filed and the suit was ripe for

trial. At a time when evidence has to be adduced on behalf of the plaintiff/ respondent herein, the plaintiff fell ill. This has resulted in examining the

respondent''s son-in-law as P. W. 1. Thereafter, the plaintiff filed I. A. No. 794 of 1986 in O. S. No. 8043 to examine himself as P. W. 2. In para

3 of his affidavit, the plaintiff/respondent herein states as follows : -

Due to various reasons, the ease was adjourned from time to time and was ultimately posted to 12-12-85 for trial in the special list. On every

prior hearing I was ready to go on with the case and give evidence. However from 1st week of December ''85, I was laid up with jaundice and

hence I could not come and give evidence. Because of this I requested my son-in-law to give evidence on my behalf as he was aware of the suit

transactions even though he was not aware , of the correspondences entered into between the defendant and myself (underlining is mine) which

according to me were not material for the purpose of this case. On 12-12-85, my son in-law was examined as P. W. 1 and the case was

adjourned to 16-12-85 for cross examination and ultimately on 7-1-86, the cross-examination was completed. During the course of the cross

examination on 7-1-86 the counsel for the defendant seems to have filed two documents, letters said to have been written by me and they were

marked as Exs. B-3 and B-4. It is pertinent to point out that no reference has been made about Exs. B-3 and B-4 either in the exchange of notices

through the advocates which preceded the suit or in the written statement filed by the defendant. For the first time Exs. B-3 and B-4 were

produced and shown to P. W. 1 on 7-1 86 and hence I could not instruct my counsel to put questions in detail to P. W. 1 about Exs. B-3 and B-

The case is now posted to 10-1-86. I submit that certain material questions regarding Exs. B-3 and B-4 were omitted to be put by my counsel

to P. W. 1. It is therefore necessary in the interest of justice to recall P. W. 1 and to permit my counsel to cross-examine him further.

It is with these averments, the plaintiff/ respondent herein sought and prayed that he be examined as P. W. 2 for the proper disposal of the lis.

It is admitted by the learned counsel for the defendant/petitioner herein, that no counter has been filed by the defendant to I. A. No. 794 of

1980. On the other hand, an endorsement has been effected by the learned counsel for the petitioner herein to the effect, that this petition is

opposed. There was another petition filed by the plaintiff to recall P. W. 1 to which we are not now concerned. In so far as this petition, where the

plaintiff sought to examine himself as P. W. 2, arguments were advanced before the trial court by the defendant''s counsel that the plaintiff having

examined his son-in-law as P. W. 1 cannot now examine himself as P. W. 2 in view of the provisions of O. 18, R., 3-A, C.P.C. The learned

Judge, on the facts of this case, allowed the application filed by the plaintiff /respondent herein, against which the above civil revision petition is

filed.

Learned counsel appearing for the defendant/ petitioner herein contends before me, that when once the plaintiff having not examined himself as a

first witness but examined another person, as in this case his son-in-law he has no right to examine himself again in this case as P. W. 2. Reliance is

placed on the wordings of O. 18, R. 3-A, C.P.C. Rule 3-A of O. 18, C.P.C. is to the following effect :

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.

The sum and substance of R. 3-A of O. 18, C.P.C. is to the effect, that if either the plaintiff or the defendant does not examine himself as the first

witness, but examines himself at a later stage, the Court must, for reasons to be recorded in writing, permit such person to examine himself at a

later stage. No doubt, it is obligatory on the part of the Court to examine the plaintiff as the first witness or if the plaintiff or the defendant wants to

examine himself at a later stage, reasons must be recorded by the Court as to why he should be , examined at a later stage. This is the sum and

substance of R. 3-A of O. 18, C.P.C. In fact, R. 3-A. was also interpreted by Sathiadev, J., in a decision reported in Marappa Gounder v.

Sellappa Gounder (1984) 97 Mad LW 617: A I R 1985 Mad 183 as follows : -

In such of those cases wherein without prior permission witnesses of the party had been examined, and later on the party wishes to appear as a

witness, the Court is duty bound to find out, whether on the party being examined at that stage, it would result in filling up any blanks or lacunae left

out in the evidence already given, and whether wantonly be avoided the witness box with ulterior motives, and whether he was placed in such a

situation or circumstances which had disabled him from being examined earlier etc. Unless compelling strong circumstances which are relevant and

germane had existed, permission to a party to a proceeding to examine himself after his witnesses had been examined, ought not to be granted.

I agree with the views of Sathiadev, J. But the question on the facts of this case is, whether the plaintiff has wantonly avoided to go to the witness

box as the first witness. The plaintiff has filed an affidavit, the relevant portion of which has been extracted above, wherein he has clearly stated,

that he was attending Court on every hearing on earlier occasions, but could not attend Court on the day when the case was taken up for trial in

view of his suffering from jaundice, which has led his son-in-law to go to the witness box to adduce evidence as P. W. 1. It so happened that when

P. W. 1 was in the witness box, certain documents Exs. B-3 and B-4 were placed before him by the defendant. They are the letters written by the

plaintiff proper to the defendant. If those documents have to be proved according to law, it is only the plaintiff who has to be examined. The

defendant having placed or marked those documents before Court to show, that the plaintiff has written those letters to the defendant, the evidence

of his son-in-law (P. W. 1) recorded on behalf of the plaintiff cannot be taken as subjective or concrete evidence to prove those letters. To prove

those letters, the plaintiff has to go to the witness box and has to depose whether, it is he who has written those letters as contended by the

defendant. The plaintiff has to be subjected to cross-examination with respect to these letters like Exs. B-3 and B-4. Failure to examine the writer

of Exs. B-3 and B-41 who is a material witness, would lead to a doubt regarding the contents and genuineness of the letters. Justice demands, on

the facts of this case, that the plaintiff has to be examined as witness to prove the letters which are relied on by the defendant. It is this aspect that

has weighed the trial Court much, to examine the plaintiff as P. W. 2 and it has allowed the petition. Courts are there only to dispense justice on the

facts and the evidence placed before them according to law. When two parties to the lis place facts before Court, they have to be substantially

proved and have to be satisfactorily established by evidence. As pointed out by the Supreme Court in Vatal Nagaraj Vs. R. Dayanand Sagar, .

Litigation is no hide and seek game but a search for truth and parties must place their cards off the table. And procedure is the handmaid, not the

mistress, of justice and cannot be permitted, to thwart the fact-finding course.

In the instant case, the defendant relies on certain documents like Exs. B-3 and B-4. According to the defendant, they are the letters written by

the plaintiff. In order to succeed the contention of the defendant, the plaintiff has to go to the witness box and has to be examined as P. W. 2. The

evidence of P. W. 1 who is the son-in-law, will not be helpful to the defendant when once reliance is placed by the defendant on the contents of

the letters written by the plaintiff to the defendant. I may at this stage state that the general rule as to the onus of proof and consequent obligation of

leading proof of any particular fact ties on the party who alleges it and not on him who denies it. As pointed out by the Supreme Court in

Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, , ""There is an essential distinction between burden of proof and

onus of proof : burden of proof ties upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus

is a continuous process in the evaluation of evidence.

Under the circumstances, I am of the view that the order of the trial Court in I. A. No. 794 of 1980 in 0. S. No. 8043 of 1983 has to be upheld

and this civil revision petition has to be dismissed.

But it must be noted that in cases of this type, it is always desirable that the parties file affidavits beforehand mentioning clearly as to who are all

the persons who are going to be examined first as per the provisions of R. 3-A of O. 18, C.P.C. In this case, the plaintiff could not be examined,

since it is stated in his affidavit that he was ill and was suffering from jaundice. Suppose if the plaintiff, having given his name that he would be

examining himself first, and if by chance, falls sick, can he not be examined subsequently if he satisfies the Court that he was sick ?. It is for the

Court to assess by sound reasoning as to why the plaintiff was not examined first. In the instant case, in view of the satisfactory reasons adduced

by the plaintiff about his illness by way of an affidavit, to which no counter has been filed, the trial Court has allowed the plaintiff to be examined as

P. W. 2. I am of the view on the facts of this case, that the impugned order of the trial Court has to be sustained. Hence this civil revision petition is

dismissed; but there will be no order as to costs.

Petition dismissed.