K.L. Parthasarathy vs G. Sitalakshmi

K. Venkataraman, J.—The present revision is directed against the order dated 02.07.2007 made in O.S. No. 2458/2003 of the learned VII

Additional City Civil Judge, Chennai.

The Plaintiff in the said suit is the Petitioner and the Defendant thereon is the Respondent.

In a suit filed by the Petitioner against the Respondent for specific performance of an agreement of sale between them and for other

consequential reliefs, the Petitioner has filed an application in I.A. No. 16697 of 2006, seeking the leave of the Court not to permit the D.W.2 to

be examined as witness on the side of the Defendant/Respondent herein. The said application came to be dismissed by the Court below and the

present revision is directed against the said order.

In the affidavit filed in support the application in I.A. No. 16697 of 2006, it is stated on the side of the Defendant, that D.W.1 was already

examined and the Defendant is trying to examine her husband as D.W.2, without an application under Order 18 Rule 3 A and hence such

application came to be filed by the Petitioner praying not to permit D.W.2 to be examined as a witness for the Respondent.

The counter affidavit has been filed on behalf of the Respondent stating that for examining D.W.1, an application was filed on behalf of the

Respondent herein in I.A. No. 14945 of 2006 and the same came to be allowed on 30.08.2006 by the Court below and only after examining

D.W.1, the Respondent herein want to examine her husband as D.W.2 on her side. Secondly it is stated that even on 24.08.2006, it has been

made known by the Respondent through her counsel that she is going to examine her husband as D.W.2. Thirdly, it is contended that the

Respondent being the Defendant is not going to give evidence in the suit and hence the question of filing the application under Order 8 Rule 3 A

does not arise for consideration at all.

The learned Trial Judge, after considering the matter in entirety came to the conclusion that the application filed by the Petitioner is devoid of

merits and hence dismissed the said application. As stated already, the present revision is directed against the said order.

It is not in dispute that the Respondent herein has filed an application in I.A. No. 14945 of 2006,seeking leave of the trial Court to examine

D.W.1, who is an official from the Postmaster, Chennai and the said application was allowed on 30.08.2006. Thereafter, only D.W.1 was

examined. Infact the Petitioner herein has not raised any objection in the said application. In view of the said fact, I am of the considered view that

examining the Respondent''s husband as D.W.2 cannot be objected by the Petitioner.

Secondly, it has been stated in the counter affidavit to the application filed by the Petitioner that even as early as on 24.08.2006, the Court

below was made known that the Respondent herein is going to examine her husband as D.W.2. The said fact has not been denied by the Petitioner

by filing the reply statement. Hence, I am of the considered view that the Court below was made known even on 24.08.2006 itself that the

Respondent is going to examine her husband as D.W.2. That apart Order 18 Rule 3A of CPC contemplates any party to the suit if he or she

wishes to appear as a witness, he or she shall so appear before any other witness has been examined. But to examine any other witnesses apart

from the party himself or herself, at the first instance, an application could be filed seeking leave of the Court. It would be useful to extract Order

18 Rule 3A of the Code of Civil Procedure.

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

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.

In the present case on hand, the Defendant is not going to examine herself as witness, but she is going to examine her husband as D.W.2.

Hence, I am of the considered view that filing of an application under Order 8 Rule 3 A does not arise at all.

The learned Senior counsel appearing for the Petitioner relied on the judgment in Ravi and Gurunathapillai Vs. Ramar,

Paragraph 22 of the judgment made therein is usefully extracted hereunder:

The amendment was introduced with a view to ensure that the party examining himself as a witness at a later stage should not be permitted to

fill-up the lacunae in the evidence adduced from his side. Where the Court comes to a conclusion that the party had deliberately with-held himself

to be examined as a witness at a later stage with a view to fill-up the lacunae in the evidence, obviously permission cannot be granted to such a

party to examine himself at a later stage. This is a relevant consideration where the Application is filed, seeking permission to examine him at a later

stage, either at the threshold of examination of other witnesses or subsequently after examination of all or some of the witnesses. The real test is to

find out whether there was a genuine cause for which the party was not examined as a first witness. If for some genuine reasons, which could not

be foreseen initially, a party wants to examine himself at a later stage, permission can be granted. Therefore, the overriding consideration is not

whether the party makes the Application at the threshold or at the subsequent stage, but whether for a genuine and germane reason the party is

required to be as a witness at the beginning. This seems to be the essence of the different decisions of different High Courts. What would be the

relevant facts and circumstances, obviously cannot be laid down in a strait-jacket formula and obviously it is for the Court concerned to deal with

the matter in judicious manner. The reference is accordingly answered. The Civil Revisions shall now be placed before the learned Single Judge for

disposal, in accordance with law.

The Division Bench has clearly spelled out that a party before examining himself as witness at a later stage cannot be permitted to fill up the

lacunae in the evidence adduced from his side. But however, if reasons are shown, the party can be permitted to examine at a later stage inspite of

other witness have deposed earlier to him.

Thus, the Division Bench has held that the party to the suit can examine himself or herself as witnesses subsequent to the examination of other

witnesses, provided if sufficient reasons are adduced.

In the case on hand, as stated already the Defendant do not want to examine herself as witnesses subsequent to the examination of D.W.1.

She want to examine her husband as D.W.2.

In view of the above facts and circumstances of the case, I am of the considered view that the Court below has rightly exercised its discretion

in dismissing the application filed by the Petitioner, which does not warrant any interference by this Court.

In the result, this Civil Revision Petition is dismissed. There shall be No. order as to costs. Consequently, connected Miscellaneous petition is

closed.