S. Srinivasan vs Smt. Balambal and 3 others

Aggrieved by the order in I.A.No.120 of 1998 in O.S.No.75 of 1996 dated 17.4.1998 on the file of District Mursif, Thiruvarur, the petitioner

plaintiff has filed the above revision before this Court.

The petitioner-plaintiff by name Srinivasan through power agent has filed the above suit for recovery of plaint B schedule property from the

defendants and for permanent injunction against the defendants/respondent; from in any manner interfering with the plaint ''B'' schedule property.

The plaint A'' Schedule property is the whole property owned by plaintiff of which plaint ''B'' schedule is a part. The suit ''B'' schedule property is a

lane measuring about 125 sq.ft. in T.S.No.166/1 No.2. Vijayapuram Vattam. It is the plaintiffs case that this suit property was owned and enjoyed

by the plaintiff and that the defendants while constructing their house in 1992 trespassed into plaint ''B'' Schedule property despite objections and

police complaints by the plaintiff and have erected concrete pillars and completely occupied it. The defendants have built a storeyed building. There

are eves projecting from the plaintiff''s main wall (AB) to a length of about 9 inches for letting out rain water. The said suit was initially filed as

O.S.No 103 of 1992 before the Sub Court, Nagapattinam and subsequently transferred to District Munsifs Court, Tiruvarur and re-numbered as

O.S.No.75 of 1996, It is further stated that since the suit is based on title a power holding he does not know the prior history of title, the plaintiffs

father Soundararaja lyengar was examined as P.W.1. The petitioner has been cited as a witness only. The plaintiff Srinivasan was not being

examined as a witness. After the examination of P.W.1, when the petitioner was about to be examined as P.W.2, the respondents'' advocate

objected to his examination on the ground that the plaintiff has not obtained prior permission from the court for examination at a later stage i.e, after

the examination of P.W.1, It is further stated that his advocate with the object of avoiding technical objections filed I.A.120 of 1998 under Order

18, Rule 3A requesting the Court to permit the petitioners to be examined as P.W.2. The said petition was objected to by the, respondents on the

ground that the plaintiff ought to have obtained permission prior to commencement of trial and not after examination of P.W.1. The lower court

according to the petitioner, on an erroneous interpretation of Order 18, Rule 3A has dismissed the application on 17.4.98, against which the

plaintiff has preferred the present Revision. It is further stated that having regard to the provision of Order 18, Rule 3A, the impugned order passed

by the trial court is legally incorrect. It is also stated that inasmuch as the petitioner is only a Power Agent and he cannot be equated with the

plaintiff. Moreover, it is stated that the lower court failed to note that his evidence will in no way relate to title about which P.W.1 has given

evidence and that his evidence will be restricted to the actual trespass committed by the defendants, the mode and the manner in which it is

committed and as to when it was committed. The provision, namely, Order 18, Rule 3A is only directory and not mandatory and a lot of judicial

discretion is vested in the Court to permit such a request.

Heard Mr. P. Gopalan, learned counsel for the petitioner and Mr. B. Ramamoorthy, learned counsel for the respondents.

An important and interesting question has to be decided, namely, whether the condition prescribed that party to the suit must be examined as

first witness under Order 18, Rule 3-A is a mandatory or directory. There is no dispute that the said suit has been filed by one Srinivasan who is

represented by Power Agent Subash. The suit is for possession and for permanent injunction. When the suit was taken up for trial, the plaintiff

Srinivasan was not in a position to give evidence. It is stated by the Power Agent-Subash that he is only a witness for Srinivasan (plaintiff) to speak

about certain aspects and that as the suit is for recovery of possession, he could not depose to prove title; hence the plaintiff''s father-Soundaraja

lyengar was examined as P.W.1. He has not given any evidence as to the actual date of trespass and construction made by the defendants since

the plaintiff and PW.1 got divided in the year 1985; accordingly be was cited as a witness in the list filed into the court after notice to the other

side. The same was received by the Court without any objection from the other side. After completion of the evidence of P.W.1, the Power holder

wanted to examine him as P.W.2. The said action was resisted by the respondents/defendant''s. Thereafter, in order to avoid technical objections,

the petitioner herein filed I.A. No.120 of 1998 in the said suit under Order 18, Rule 3-A, C.P.C. praying to examine him as P.W.2 on the side of

the plaintiff The said petition was resisted by the respondents/defendants. The Power Agent who was sought to be examined has signed the plaint

and for all purposes, he is the plaintiff in the suit. By pointing out the provision in Order 18, Rule 3-A it is stated that the: said provision must be

construed strictly. Inasmuch as the petitioner''s Power Agent did not file any petition under Order 18, Rule 3-A prior to the examination of P.W.1,

the Court below after holding that mere is no exceptional circumstance while refusing to condone the action of the petitioner for his failure to seek

permission to examine the witness before examining the party before commence-ment of the trial dismissed I.A. No.120 of 1998. In order to

appreciate the rival contentions as well as the order impugned, I shall refer Order 18, Rule 3A, which has been inserted by C.P.C.(Amendment)

Act, 1976.

Order 18, Rule 3A:- 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 reason is to be recorded permits him to appear as his own witness at a later stage.

A reading of the said provision shows that the party who wishes to appear as a witness, can depose before any other witness on his behalf has

been examined. However, if the plaintiff wants to appear and depose at a later stage after examination of his witnesses, he must obtain permission

from the court concerned. If the court is satisfied after recording the reasons, it can permit the plaintiff to appear as his own witness at a later stage.

This provision has been interpreted by various decisions of this Court. Some of the learned Judges have taken a view that it is a mandatory one

and without prior permission, the plaintiff cannot appear as a Witness at a later stage. However, in some of the decisions, the Hon''ble Judges of

this Court have taken a view that it is only a directory and if petition is filed at the time of his evidence showing sufficient-cause, the court can

condone the said act and permit him to appear as a witness at a later stage.

Now I shall consider the decisions cited by the learned counsel for the petitioner holding that the said provision is only a directory and the court

can permit the plaintiff to appear as a witness at a later stage. In the case of Samidurai and Others Vs. Kanakayal, , Jagadeesan. J had an occasion

to consider a question with reference. Order 18, Rule 3-A-. Before the learned Judge, the defendants in O.S.No.275 of 1993 have filed the

revision petition against the order of the District Munsif, Jayankondam in I.A.No 196 of 1995 seeking permission to examine herself as a witness

after the second plaintiff and one other independent witness had been examined. The revision petitioners opposed the claim of the respondent

therein on the gound that she (respondent) cannot be permitted to be examined as a witness after other witnesses had been examined. It is further

stated that if she wants to examine herself as a witness, she ought to have got permission of the Court prior to the examination of other witnesses.

Since she did not reserve any right to examine herself as a witness by obtaining permission before ever the other independent-witnesses were

examined, the court has no jurisdiction to grant permission to the respondent to examine herself as a witness. The court below following a decision

of this Court reported in Karuppuswamy v. Gnana Soundari, 1986 (II) M.L.J. 456 found that the provision under Order 18. Rule 3-A, C.P.C. is

only in the form of directory and as such it is not necessary for the party to seek the permission before ever the other witnesses are to be

examined. On this ground, the application was allowed. Aggrieved by the same; the revision has been filed by the petitioners therein before this

Court: The learned counsel for the petitioners before the learned Judge contended that the provision under Order 18, Rule 3-A., C.P.C. is

mandatory and as such the respondent ought to have reserved her right by obtaining prior permission before ever the other witnesses are

examined, failing which it is not open to the respondent to seek permission at a later point of time. Per contra, the learned counsel for the

respondent contended that there, is no need for the respondent to obtain prior permission before ever the other witnesses are examined. The other

contention was that the only requirement as per the provision is that if at all the respondent wants to examine herself as a witness after the

examination of other witnesses, she cannot automatically enter the witness box but she has to obtain the permission of the Court to give evidence

on her side. In the light of the said contention the learned Judge referred to a decision of Sathiadev. J (as he then was) reported in Marappa

Gounder and Others Vs. Sellappa Gounder and Others, . In that decision, Sathiadev, J. has held that if a party to the suit desires to be examined

later on, he should seek prior permission before other witnesses were examined. Whenever permission is sought for according to him, it is

obligatory on the part of the Court to record reasons, by passing a written order, either granting or refusing it. The learned Judge has expressed

that 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 petmit

any; witness of the party to be examined. The learned Judge has also observed that 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 blank of any lacunae left out in the evidence already given, and whether want only

he avoided the witness box with ulterior motives, and whether he has placed in such a situation or circumstances which had disabled him from

being examined earlier etc. It is further observed that unless compelling strong circumstances which are relevant and germane bad existed

permission to a party to a proceeding to examine himself after his witnesses had been examined, ought not to be granted. Jagadeesan, J has also

referred to another decision of T.N. Singaravelu, J. reported in Karuppuswamy v. Gnana Soundari, 1986 (II) MLJ 456. The learned Judge also

referred to another decision of M.A. Sathar Sayeed, J. reported in G.K. Rao Vs. A. Henry, . Before Jagadeesan, J a judgment of Ratnam J (as he

then was) reported Ayyasami Gounder and others Vs. T.S. Palanisami Gounder, taking contrary view has been cited, In that decision, Ratnam, J.

took a different view by holding that the party who wants to examine at a later stage should sought for the permission and obtain before the

commencement of the examination of other witnesses on behalf that parry and not later. After referring to all the above decisions, namely,

Sathiadev, J in Marappa Gounder and Others Vs. Sellappa Gounder and Others, ; T.N. Singaravelu, J. in Karuppuswamy v. Gnana Soundari,

1986 (II) MLJ 456; Sathar Sayeed, J. in G.K. Rao Vs. A. Henry, ; and Ratnam, J. in Ayyasami Gounder and others Vs. T.S. Palanisami

Gounder, in which a different view was taken as well as Order 18, Rule 3-A, C.P.C., Jagadeesan, J., has observed thus:-

A plain reading of this Rule makes it clear that a party who wants to appear as a witness 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. There is no stipulation

of time as to when the permission has to be sought for. If a party wants to appear as a witness, he should do so prior to the examination of any

witness on his behalf. Otherwise if he wants to appear at a later point of time if the court permits he can do so.

After saying so and after disagreeing with the view expressed by Ratnam, J (as he then was) in Ayyasami Gounder and others Vs. T.S. Palanisami

Gounder, , Jagadeesan, J., has held that Order 18, Rule 3A, C.P.C. is only directory and it is not necessary for the party to get permission of the

court before the commence-ment of the proceedings to examine him/her as a witness at a later point of time. The learned Judge has also held that

even if the evidence on their side is over, it is open to them to appear as witness, provided the court permits. The very same learned Judge in the

subsequent decision reported in Chidambaram Vs. Ratnam, after referring to his earlier decision Reported in Samidurai and Others Vs.

Kanakayal, , has once again reiterated his earlier view that Order 18, Rule 3-A is only directory.

In the case, of Muthalammal and 2 others Vs. Sathya Naicker, . K. Sampath, J. after considering the very same provision viz, Order 18, Rule

3A, C.P.C.. and after referring to the earlier decisions of this Court as referred to by Jagadeesan, J., has taken the following view:-

.. I am unable to see as to how the examination of a third party before examination of the respondent had caused prejudice to the other side in any

manner in the present case.

The learned Judge after noting that this point was not at all raised by the appellants in either of the courts below, has opined that the appellants

were not in any way prejudiced by the examination of the respondent as B.W.2 after examination of his witness as D.W.1. Following a decision of

Patna High Court in Pravesh Kumari and Others Vs. Rishi Prasad and Others, , the learned Judge, Sampath, J) has observed that the evidence

need not be expunged. Even though there is no answer for our question in the said decision, the learned Judge is of the view that the said provision

is only a directory.

Now I shall consider the decisions cited by the respondents taking contrary view that Order 18, Rule 3-A is a mandatory and without prior

permission of the party cannot appear as a witness at later stage. The first decision is in the case of Ayyasami Gounder and others Vs. T.S.

Palanisami Gounder, . The following conclusion arrived at by the learned judge with reference to Order 18, Rule 3-A is relevant:-

..... Considering the object with which Order 18, Rule 3-A of the code has been introduced, it is clear that permission from, the Court for the

examination of a party at a later stage, should be sought for and obtained before the commencement of the examination of other witnesses on

behalf of the party seeking such permission and not later. Though the provision under order 18, Rule 3-A of the Code does not in terms indicate

the stage at which such an application should be made, in this case, such an application had not been made and permission obtained prior to the

examination of the witnesses on behalf of the respondent and therefore, the respondent could not have been permitted to come in at a later stage as

a party witness.

In the case of V. Jayakannan v. Sampath alias Sampathkumar, 1991 (II) M.L.J. 77. M.N. Chandurkar, J. the then Hon''ble Chief Justice had

an occasion to consider the scope of Order 18. Rule 3-A. After referring to a decision reported in Marappa Gounder and Others Vs. Sellappa

Gounder and Others, , as well as Order 18, Rule 3-A, which has been expressly introduced by the amendment Act of 1976, the Hon''ble Chief

Justice has observed as follows:-

Plainly read, the provision clearly, appears to be mandatory, in character. Rule 3-A expressly provides that, if a party wishes to-appear as a

witness, then he shall so appear before any other witness on his behalf has been examined. If he wants to reserve himself as a witness and he

proposes to examine himself after other witnesses are examined, that is undoubtedly permissible but be has to obtain previous permission of the

court and the court has; undoubtedly the discretion to grant such permission, but before that discretion is exercised in favour of the party, the court

must record reasons for permitting a party to examine himself after the other witnesses are examined. The very fact that permission has to be

obtained by a party desiring to be examined as a witness after other witnesses are examined clearly indicates that such permission must be

obtained before the evidence of the other witnesses is adduced. Therefore, a party examining himself before other witnesses are examined is the

rule. A party examining himself after the other witnesses arc examined is an exception. An exception can be made only for valid reasons, that those

valid reasons will depend on the facts and circumstances of each case. The requirement of Order 18, Rule 3-A that the court must record its

reasons also indicates that Rule 3-A has specifically ruled out any permission being granted at a later stage after the witnesses are already

examined. The obvious purpose of the rule is to do away with the practice which had grown in Indian courts of examining all other witnesses first

and then the party catering the witness box to fill up all the lacunae which might have been left or to undo the damage which might have been made

by other witnesses. It adversely affects the opposite party. It is a normal rule of appreciation of evidence that the substantive evidence in each case

is of the party itself and the other witnesses are most of the time treated as witness corroborating the substantial evidence which has now been

incorporated in the mandatory provision by the enactment of Order 18, Rule 3-A of the Code of Civil Procedure. Any other construction, and

especially, the construction which is canvassed on behalf of the defendants, will defeat the very purpose and intent of Order 18, Rule 3-A is a

provision which is intended to regulate the trial, then it is expected, not only of the parties, but also of the courts to give affect to the provisions of

Order 18, Rule 3-A, though it is quite possible that such a strict construction in a given case may cause prejudice. But even that prejudice can be

undone, if the party takes care to apply to the court in time before other evidence is recorded. If in a given case the party does not apply to the

court for permission to examine himself after other witnesses are examined it will only mean that the party has defaulted with regard to what he is

required to do at the trial. This may even be due either to negligence or a casual approach towards the litigation. But for this the party must blame

himself. Even assuming that prejudice will be caused to the party if he is deprived of a chance of examining himself as a witness, he alone must be

held responsible for the prejudice. Also the possibility of prejudice arising from the party''s own negligence cannot undermine the purpose and

intent of 0.18, Rule 3-A of the Code which was enacted in the larger interests of justice to secure a fair trial of the issues which a court is called

upon to decide. Therefore, plainly read, the only construction, which may appear to be inconvenient to some of the parties, is that, before the

evidence of other witnesses is recorded the party must go into the witness box. A departure from this rule is not normally possible, except in

exceptional circumstances, only if the previous permission is taken allowing the party to be examined after the other witnesses are examined.

Even after referring the decisions in Marappa Gounder and Others Vs. Sellappa Gounder and Others, ; U.K. Rao''s case, 1986 TLNJ 78; and

Karuppuswami''s case, 1986 (II) M.L.J. 456, the Hon''ble Chief Justice has observed thus:-

.....""Therefore, if all the four defendants wanted to examine themselves as parties, they'' should have been examined ''one after the other and then

only other witnesses should have been examined...

In so far as the argument of stringently construing order 18, is concerned, it has to be realised that if this provision is not construed stringently, the

situation in the case of trial of suit will be the same as it was, before the provision was enacted. The obvious result will be that if the provision in

Order 18, Rule 3-A is not implemented, it will defeat the very intent and purpose for which it was enacted. The provision in Order 18, Rule 3-A

must therefore, receive a strict construction...

In the case of Dr. V.K. Muthusamy Vs. M/s. U.A. Habeen Firm and others, . Somasundaram had an occasion to consider the scope of Order

18, Rule 3-A. The learned Judge, after referring to the judgment of the Hon''ble Chief Justice in V. Jayakanna''s case, 1991 (II) MLJ 77: 1987

TLNJ 340, has held as follows:-

3................

What is relevant under Order 18, Rule 3A of the Code is that the court should be satisfied that the party who should appear, as a witness on his

behalf before the other witnesses in support of his case are examined, is unable to appear and give evidence in support of his case. The reasons

required to-be recorded relate to this and if the court is satisfied with reference, to the reasons given by the party as to why he should be permitted

to appear as a witness at a later stage, then the permission can be granted by the court subject to the recording of reasons in that regard.

In the case of Doraisami Gounder v. Pachamuthu Gounder 1995 (2) L.W. 713, Abdul Hadi, J. while construing Order 18, Rule 3-A of the

Code of Civil Procedure, has observed as follows:-

No doubt, in the present case, the plaintiff has not been examined first. Only after the attestor P.W.1 was examined, he has been examined as

P.W.2. No doubt there are conflicting decisions as to whether this provision is mandatory or directory. However, it appears that many different

single Judge decisions of this Court have held that the said provision is a mandatory one and of which a more recent one is Jayakannan v. Sampath

alias Sampathkumar, 1991 (II) M.L.J. 77. No doubt, teamed counsel for the respondent brought to my notice a Division Bench judgment of Patna

High court in Pravesh Kumari and Others Vs. Rishi Prasad and Others, holding that the abovesaid provision is only directory, though such a

conclusion did not mean that the said provision need not be observed. However, the said decision did hold that the non-observance of the said

provision in all eases should not lead to the extreme penalty of expunging the relevant evidence, which had already been recorded...

The said provision, namely, Order 18, Rule 3-A of the CPC was introduced by Amendment Act 104 of 1976 pursuant to the

recommendations in the 54th Report of the Law Commission and the said provision was intended to prevent the persistent and notorious practice

indulged by litigants in examining other witnesses first and alter covering up the gaps and lacunae in such evidence, by the examination of the parties

themselves later to substantiate their case. The mere reading of the said provision shows that the party should be examined first and other witnesses

later and if the other witnesses are to be examined first and the parties should be examined later, the Court should permit the party to so appear as

a witness at a later stage.

A plain reading of the said provision makes it clear that in a case where a party desires to examine himself at a later stage, he should prior to

the commencement of the evidence on his side make an appropriate application before the Court for such later examination. While so, in many

cases the parties filed petitions even before the commencement of the examination of the witnesses seeking permission for examination at a later

stage i.e,. after the examination of the witnesses. In some cases, they file petition only at the time of their examination i.e., after examination of their

witnesses. In view of the provision a introduced by the Amendment Act, 1976, in the light of the conflict decisions as to whether this provision is

mandatory or directory and it occurs in many cases at the time of the trial. I am of the view that the same has to be decided by an authoritative

decision by a Division Bench; accordingly Registry is directed to place the matter before My Lord The Hon''ble Chief Justice for placing the matter

before a Division Bench. Inasmuch as this Court has granted stay of all further proceedings of the suit which is of the year 1996, it is desirable that

the matter may be disposed of at an early date.