Marappa Gounder and Others vs Sellappa Gounder and Others

Defendants are petitioners. Respondents who are plaintiffs filed 0. S. No. 58 of 1981, on the file of the District Munsif''s Court, Bhavani, for a

declaration that they are entitled to irrigate their lands through the suit channel, and to restrain defendants from interfering with their right of

irrigation, by way of an injunction. Written statement was filed on 10-11-1982, and issues were framed on 2-3-1983. The suit was taken up for

trial on 28-6-1983, and adjourned to 14-7-1983, on which date, instead of any of the plaintiffs being examined, one of their vendors was

examined as P.W.1.On 15-7-1983, Exs. A 1 to A3 were marked and P.W. 1 was examined on 16th, 18th and 19th of July 1983. On coming to

know that plaintiffs were arranging to put one of the plaintiffs in the box for examination, I. A. 0. No. 1067 of 1983 was filed under 0. XVIII rule

3-A and S. 151 C. P. Code, to pass an order prohibiting the examination of any of the plaintiffs in the suit. The trial Court dismissed the

application holding that, when the suit was opened on 14-7-1983, counsel for plaintiffs sought oral permission to examine the vendor of the suit

property, and that, on 15-7-1983, a joint memo was filed for joint trial of O. S. No. 58 of 1981 with 0.S. 1243 of 1981, which was instituted by

the sixth defendant, and therefore, the petition was devoid of merits, and hence dismissed it as not maintainable.

Mr. S. Gopalaratnam, learned counsel for defendants, submits that, when rule 3-A of 0. XVIII C.P.C. had been introduced under Amending

Act 104 of 1976 to prevent this ''persistent notorious malpractice indulged in by litigants bordering dishonesty'', the trial Court had overlooked the

intendment behind the rule and had light-heartedly dismissed the application. The claim made that oral permission was sought is also disputed.

On behalf of the plaintiffs, Mr. N. Sivamani, learned counsel, would first submit that, when a statement is made by court in its order as to what

has transpired in the proceedings, thereafter, no party to a proceeding can dispute it, in view of the decision rendered in State of Maharashtra Vs.

Ramdas Shrinivas Nayak and Another, . It was held therein that, ''If the Judges say in their judgment that something was done, said or admitted

before them, that has to be the last word on the subject''. He then relies upon the decision in Gurdial Kaur Vs. Pyara Singh, but it dealt with only

rules 1 and 2 of Order 18 C.P.C. and the undesirable practice which had developed and was in vogue in the State of Punjab, of parties coming

into the witness box at the end of their evidence, so as to fill up any blanks or lacunae in the evidence, and hence held as not conducive to better

administration of justice. He then relied upon the decision in Bholanath Mondal and Others Vs. Kalipada Mondal, , wherein it was held, that rule

3-A is directory, and that after other witnesses are examined, permission can be granted to a party to a proceeding to be examined. In the decision

in Kwality Restaurant, Amritsar Vs. Satinder Khanna, it was held that a party may, perhaps, as a matter of abundant caution, apply at the stage of

commencing his evidence, and get the necessary permission, and equally, if sufficient ground is made out, he may secure such permission at a later

stage also.

As pointed out by Mr. S. Gopalaratnam learned counsel for defendants, under S. 135 of Evidence Act, the order in which witnesses are

produced or examined shall be regulated by the law and practice for the time in force relating to civil and criminal procedure respectively, and in

the absence of any such law, by the discretion of the court. When a specific provision had been introduced by an amendment Act, based on the

recommendations of Law Commission, to undo an existing mischief which stands in the way of proper administration of justice, the importance of

the rule cannot be got over, by allowing trial courts to persist in the same old procedure, merely because, it is held to be directory.

When the rule contemplates permission to be granted by Court for a party to a proceeding to be examined at a later stage, it is indicative that

there is no total ban against parties being examined after their witnesses are put in the witness box. That was why, in the decisions above referred

to, it was held, that the rule is directory in nature. This would not mean that the rule could be transgressed indiscriminately in an unbridled manner.

A duty is cast on the court to record reasons, which means that valid and compulsive grounds must be made out, for postponing the examination of

parties to the suit. If a party to the suit desires to be examined later on, he should seek prior permission before the other witnesses are examined.

In its absence, it can be sought later on at the time when the party is put in the witness box, if by mischance any of his witnesses have been already

examined, without securing earlier permission. Whenever permission is sought for, it is obligatory on the part of Court to record reasons, by

passing a written order, either granting or refusing it. If permission is sought in the initial stage before any witness is examined, then reasons to be

given should relate to the justifiable inability on the part of the party to first examine himself. Before granting permission, it should hear the

objections, if any, of the other side, and then alone permit any witness of the party to be examined.

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 he 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. The

intention of Parliament in enacting the rule, which had come into existence, on the recommendation made by Law Commission, had resulted in a

revised procedure being evolved, according to which a Court has to record reasons mentioning the circumstances which it takes into consideration

for granting permission. Failure to give valid reasons, would vitiate the order and the evidence recorded without permission, cannot be treated as

part of the records in the suit. The most desirable and the healthy practice required to be followed by trial Courts is to call upon parties to the suit,

as soon as the suit is posted for trial to file memos into Court stating as to whether they intend to be examined or not. If only trial Courts resort to

this practice, it would result in proper compliance with rule 3A and that notorious malpractice indulged in would come to an end. A suitable

amendment in the Civil Rules of Practice to this effect, would bring about uniformity of procedure in the trial Courts in this State.

On the finding given that the application was not maintainable, it is needless to state that this is obviously and patently an erroneous finding. The

application as filed, is contemplated under Civil Procedure Code, and a party to a proceeding can invoke Rule 3A of Order 18,under such

circumstances.

The other ground relied upon is that, another suit filed by sixth defendant, wherein he was the first plaintiff, viz., 0. S. 1243 of 1981 was to be

tried jointly along with this suit (O. S. 58 of 1981). Prior to the memo filed to this effect O.S. No. 58 of 1981 having been already taken up for

recording oral evidence, subsequent development would not make the petition filed, as a petition devoid of merits. This is yet another error

committed by trial Court.

The next point taken is that, plaintiffs side had sought for oral permission to examine the vendor of the suit property. In the light of the decision

rendered in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, , this statement has to be taken as binding upon defendants. But, still

this does not satisfy the requirements of Rule 3A because as to what were the reasons that provided upon the Court to grant permission, are not

spelt out in this order. It is not claimed that while granting oral permission reasons were enumerated and disclosed to parties. When R. 3A

contemplates that reasons must be recorded, it is undesirable for a court to proceed on oral permission and much worse, if such e permission had

been granted without reasons. Vendor of a suit property is a competent witness, cannot be a valid circumstance to permit him to be examined

earlier to the plaintiffs. It is not stated in the order as to what urgent or compelling or unavoidable circumstances existed, to prevent such of those

plaintiffs, who wished to appear as witnesses, from being examined at first. Hence, when the B diary called for does not disclose any reasons

having been granted on 14-7-1983, the decision to permit P.W. 1 to be examined on that day, was the outcome of a permission granted without

reasons, and hence the oral permission granted is contrary to R. 3A.

Furthermore, on orders passed under R. 3A, a civil revision petition would lie to this Court, which would have to scrutinize the order to find

out as to what were the reasons which prevailed for granting permission. If oral permission is granted, the reasons which prevailed upon the trial

Court would be unknown, and it turn parties would suffer. When the rule itself imposes a duty to record reasons, no other method is permissible

Hence, accepting the statement made by the Court that it had granted oral permission which method improper, the order of the Court below is set

aside and it is directed to dispose of the application afresh. Hence this petition is allowed. No costs.

Petition allowed.