Iqbal Singh vs Kamal Dev & Another

Ajay Mohan Goel, J

By way of this petition filed under Article 227 of the Constitution of India, petitioner/plaintiff assails the order which has been passed by the Court

of learned District Judge Hamirpur, H.P. in C.M.A. No.887 of 2019, in Civil Suit No.1 of 2019, titled as Ikwal Singh Versus Kamaldev & Anr, vide

which an application filed by present petitioner/plaintiff before the learned Court below, under Section 151 of the Code of Civil Procedure, for granting

permission to the applicant/ plaintiff to have his statement recorded after recording statements of other plaintiff’s witnesses, being rejected.

The matter was initially listed before Hon’ble Vacation Judge on 23.01.2020. On said date, Hon’ble Vacation Judge had stayed further

proceedings pending before the learned Court below and had ordered issuance of notice to the respondents for today i.e. 27.02.2020, on steps being

taken by the petitioner within two days. As per report of the Registry, this order was not complied with by the petitioner as no steps were taken for

the service respondents for today within two days and steps were taken as far back as on 24.02.2020.

In order to ascertain as to whether there is any merit in the present petition, this Court had requested learned counsel for the petitioner to make his

submission on merit vizÂ​aÂ​viz the order under challenge.

I have heard learned counsel for the petitioner and have also gone through the impugned order.

Learned counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law, as in case the same is permitted to

remain on record, the suit of the plaintiff would be rendered infructuous. He has further argued that the learned Court below has erred in not

appreciating that plaintiff could not earlier get his statement record for the reasons which was beyond his control. No other point was urged.

A perusal of the impugned order demonstrates that the matter was listed before the learned Court below for recording statement of plaintiff’s

witnesses for the first time on 14.06.2019. Admittedly, on the said date, neither plaintiff appeared before the Court for the purpose of recording

statement of his witnesses nor any request was made on his behalf by his counsel to the effect that recording of the statements of the plaintiff’s

witnesses be deferred as there was some causality in the family.

Be that as it may, thereafter again the matter was listed for the purpose of recording statements of the plaintiff’s witnesses on 25.09.2019,

06.11.2019 and 03.12.2019. It is also borne out from the impugned order that affidavits of two witnesses were tendered on 03.12.2019 and they were

also crossÂ​examined on 06.12.2019.

Not only this, during the course of listing of the case on earlier occasions for the purpose of recording statements of plaintiff’s witnesses, five

witnesses were examined. It is only thereafter, that the application stood filed on 05.12.2019, under Section 151 of the Code of Civil Procedure by the

petitioner/plaintiff, seeking permission to have his statement recorded after the statements of all the witnesses.

The application which was so filed by present petitioner before the learned Court below is appended with the petition as Annexure PÂ3. While

dismissing this application, learned Court below has held that the averments which were made in the said application especially para 4 thereof were

highly vague and a generalized statement stood made therein explaining as to why the plaintiff could not depose before the Court earlier which could

not be termed to be a sufficient cause.

Learned Court below has observed in its order that the least that was expected from the plaintiff was that he should have had given some details

as to what incident actually took place in the family. It observed that in the absence thereof, said plea of the plaintiff could not be accepted. Learned

Court also held that even if plaintiff was unable to appear before the learned Court below for the purpose of recording his statements on 14.06.2019,

he in fact did not appear for the said purpose in the Court on subsequent dates nor any application was filed by him on the dates so fixed. This, as per

the learned trial Court below demonstrated that plaintiff had deliberately not stepped into the witness box to fill up the gaps left by the statements of

his witnesses.

Learned Court below also held that Order 18, Rule 3 (A) of the Code of Civil Procedure was enacted to prevent the party from appearing after

examination of other witnesses and in case said provisions are construed liberally then the purpose of enacting said provision would be defeated.

In my considered view, there is no infirmity in the order which has been so passed by the learned trial Court, while dismissing the application filed

by present petitioner, under Section 151 of the Code of Civil Procedure, for grant of permission in his favour to give statement after the statements of

other witnesses recorded.

Order 18, Rule 3(A) of the Civil Procedure Code provides that 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 the reasons to be recorded, permits him to appear as his own witness at a later

stage.

Coming to the facts of the present case, admittedly, the case was listed for the purpose of recording of the statements of plaintiff’s witnesses

on 14.06.2019, 25.09.2019, 06.11.2019 and 03.12.2019. On the following dates, about five witnesses on behalf of the plaintiff were examined. Plaintiff

himself did not appear as a witness before the learned Court below. It is thereafter, that an application stood filed by him under Section 151 of the

Code of Civil Procedure on 05.12.2019, to the effect that he should be permitted to have his statement recorded after the statements of other

witnesses were recorded.

In my considered view, this application filed by the petitioner before the learned Court below was nothing but an afterthought and was not in sync

with the statutory provisions of Order 18, Rule 3 (A) of the Code of Civil Procedure. Said provision of the Code does allows a party to appear as a

witness at a later stage subject to permission of the Court, but then obviously such prayer has to be made by the party before the Court at the first

available instance. Meaning thereby, that an application has to be filed by the party concerned on the date when the matter is listed for recording of

the statements of said party seeking liberty of the Court to have his statement recorded after recording of the statements of other witnesses. If any

such application is filed before the Court at that stage, then the Court has to apply its judicial mind on the reasons mentioned in the said application and

subject to what the other party would have to say with regard to the application so filed by the first party, pass appropriate orders. These provisions

cannot be permitted to be abused by a party by first not appearing as its own witness and thereafter seeking liberty to appear as a witness after

recording of the statements of the other witnesses. This is not the spirit of Order 18, Rule 3 (A) of the Code of Civil Procedure.

Not only this, a perusal of the application which was filed by the petitioner before the learned trial Court (Annexure PÂ3) demonstrates that same

is vague and cryptic. No plausible reason has been mentioned therein as to why petitioner could not earlier appear before the Court as his witness and

why no such application has been filed at an earlier stage. Learned Court below is right in its observations that the averments made in para 4 that the

petitioner could not appear before the Court as a witness due to some causality in the family were extremely vague and cryptic, because there is no

mention therein as to what actually happened, on account of which the petitioner/ plaintiff could not appear before the Court, to have his statement

recorded.

Accordingly, as this Court does not finds any merit in the present petition and further as this Court does not finds any infirmity in the order

impugned by way of the present petition, the same is dismissed. Pending miscellaneous applications, if any, stand disposed of. Interim order, if any,

stands vacated.