Samidurai and Others vs Kanakayal

Jagadeesan, J.—The defendants in O.S.No. 275 of 1993 have filed the above revision petition against the order of the District Munsif,

Jayankondam in I. A .No. 196 of 1995. The said application was filed by the respondent herein who is the first plaintiff in the suit, seeking

permission to examine herself as a witness after the second plaintiff and one other independent witness had been examined. The petitioners herein

opposed the claim of the respondent herein on the ground that the respondent herein cannot be permitted to be examined as a witness after other

witnesses had been examined. If the respondent wants to examine herself as a witness, she ought to have got the permission of the court prior to

the examination of other witnesses. Since the respondent 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. However, the lower court has considered the recent two judgments of this court and agreed with the view expressed in one judgment

reported in Karuppuswamy v. Gnana Soundari, 1986 (II) MLJ 456 and 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 present revision has been filed by the petitioners.

The counsel for the petitioners 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. The court does not clothe with such power.

Per contra, the 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 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 into the witness box but she has to obtain the permission of the court to give

evidence on her side. The discretion is vest with the court either to grant such permission or reject. In this case, the court has considered the

reasons stated by the respondent in her affidavit seeking permission to examine herself as a witness and allowed the application. There is no error

of jurisdiction in the order of the court below and as such no interference is called for by this court.

To appreciate the arguments of both the counsel, it is worthwhile to refer some of the judgments of our High Court as well as the other High

Courts. Sathiadev, J (as he then was) had dealt with the matter in the case reported in Marappa Gounder and Others Vs. Sellappa Gounder and

Others, wherein the learned Judge has held that there is no total ban against the parties being examined after their witnesses are put into the witness

box. The only requirement is that they can be examined with the prior permission of the court and a duty is cast on the court to record reasons.

This is clear from the following passage:

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 party 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 blank of lacunae left

out in the evidence already given, and whether wantonly 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. 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.

In another judgment reported in Karuppuswamy v. Gnana Soundari, 1986 (II) MLJ 456 T.N.Singaravelu, J (as he then was) has held as

follows:

It is clear from the above provision that the Court has got judicial discretion to permit a party to give evidence even after a witness has been

examined, but then the court will have to state the reasons for permitting him to appear at a later stage. The reasons will have to be in writing. In the

instant case, the trial court has not given any reasons for rejecting the application, except stating that Order 18, Rule 3-A is a bar for examining a

party as a witness subsequently. The lower Court in a short order dismissed the application holding that there is no provision in the Code under

which a party, who has failed to examine himself in the first instance can appear as a witness. I have already extracted the relevant provisions of the

Code of Civil Procedure, and it is clear therefrom that the Court has got judicial discretion to allow a witness to be examined at a later stage

provided the Court permits him after giving the reasons. The trial court wrongly though that it has no discretion in the matter.

In fact, the learned Judge has referred to the following judgments reported in Inderdeo Sah Vs. Dhramdeo Mahto and Another, , Kwality

Restaurant, Amritsar Vs. Satinder Khanna, , Paramananda Fateshingh and Others Vs. Labanya Bewa and Others, and Marappa Gounder and

Others Vs. Sellappa Gounder and Others, .

M.A.Sathat Sayeed, J who also had an occasion to deal with the provision of Order 18, Rule 3-A. C.P.C. has agreed with the view expressed

in the case reported in Marappa Gounder and Others Vs. Sellappa Gounder and Others, and held as follows in the case reported in G.K. Rao Vs.

A. Henry, :-

The sum and substance of Rule 3-A of Order 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 Rule 3-A of Order 18, C.P.C.

In the case reported in Khadi Kissan Vs. Thubra Kissan and Another, , the learned Judge has held as follows:

No doubt, Order 18, Rule 3-A, C.P.C. 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 reasons to be recorded, permits him to appear as his own witness at a later stage.

But this rule is directory and not mandatory. A Division Bench of this Court in the case of Maguni Dei Vs. Gouranga Sahu and Others, held that

Rule 3A of Order 18 is of directory nature. In proper cases the court has got power to examine a party at a later stage even though he has not

obtained the court''s previous permission as provided in the rule. If a party has acted in good faith and it is just and fair to permit him to examine

himself at a later stage, the court is not absolutely helpless in the matter.

In the case reported in Romesh Kumar Vs. Chanan Lal, the learned Judge has held as follows:

It is true that a duty is cast on the Court by Order 18, Rule 3-A C.P.C. to record reasons before permitting a party to appear as his own witness

at a later stage when its witnesses had been examined by the Court. At the same time it cannot be denied that the rules of procedure are always to

be interpreted liberally in order to advance the cause of justice. The word ''shall'' used in the above referred rule makes it obligatory for a party to

the suit to appear as a witness before any other witness on his behalf is examined. But at the same time if it chooses to appear as a witness at a

later stage, he has to seek permission of the Court and at that time the Court while permitting or refusing him to appear as a witness has to record

reasons. In this manner thus this provision is directory in nature and not mandatory. Orissa High Court in Maguni Dei Vs. Gouranga Sahu and

Others, . I have treated this Rule mandatory in nature while Madras High Court in Marappa Gounder and Others Vs. Sellappa Gounder and

Others, relying upon State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, has held that Rule 3-A contemplates regarding reasons to

be recorded by the Court while permitting party to appear as a witness and it is undesirable for a Court to proceed on oral permission and much

worse if such a permission and must worse if such a permission had been granted without reasons. This Court in case Mohanlal v. Vinod Kumari,

1988 KLJ 150 has held this rule to be directory in nature. In whatever manner we interpret Rule 3-A if comes out that a party can appear as a

witness at a later stage with permission of the Court if it shows sufficient reasons for it and the Court while permitting it to appear as a witness, after

its witnesses had been examined, has to record reasons and to see whether the party is not appearing in order to fill up any blanks or lacuna left

out in evidence already given.

However, there is one judgment reported in Ayyasami Gounder and others Vs. T.S. Palanisami Gounder, wherein the learned Judge 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 of that party and not later. In his own language it is as follows:

A plain reading of the provision indicates that the party should be examined first and the other witnesses later, and if 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. When the

object behind the introduction of O .XVIII, Rule 3-A of the Code is to put an end to the malpractices indulged in by the litigants, referred to

earlier, it is obvious that in cases where the party desires to examine himself at a later stage, he should prior to the commencement of the evidence

on his side, make an application in that behalf before the court for such later examination. Otherwise, O.XVHI, Rule 3-A of the Code will be

honoured more in its breach, rather than in its observance. When the provision contemplates the obtaining of permission from that Court for the

later examination of a party as a witness, it is clear that such permission should be applied for and sought prior to the commencement of the

evidence of the side of the party on seeking permission, as the non-obtaining of such permission at that stage would result in a breach of Order 18,

Rule 3- A of the Code and to say that Order 18, Rule 3-A of the Code could be resorted to even after the examination of other witnesses on

behalf of the party to the suit, would be to render that provision a dead-letter. The resort to Order 18, Rule 3-A of the Code, after other witnesses

are examined on behalf of a party seeking permission for the examination of a party thereafter, would defeat the very purpose of the rule that the

party should be examined first as a witness and the other witnesses later. The requirement that the party shall appear before any other witness on

his behalf has been examined, shows that in all cases, the party should be examined first before the other witnesses and only in very exceptional

cases, subject to the grant of permission by court, he could be permitted to appear as a witness at a later stage. The provision enabling the party to

appear as a witness, at a later stage, subject to orders of Court, and the requirement that he shall appear before any other witness on his behalf has

been examined, show that the proper time at which the permission for examining a party as a witness later, should be applied for is when the party

himself should appear as a witness and that according to the rule, should be before other witnesses are examined. 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.

Order 18, Rule 3A, C.P.C. reads as follows:

R. 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.

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.

Except the judgment reported in Ayyasami Gounder and others Vs. T.S. Palanisami Gounder, in all other cases, it has been held that it is open

to the party to appear at a later point of time as a witness, provided the court grants permission for the same. It is not necessary that the party

should reserve his/her right to appear as a witness at a later point of time by obtaining permission prior to the commencement of the evidence on

their side. Even in the case reported in Ayyasami Gounder and others Vs. T.S. Palanisami Gounder, RatnamJ has indicated that the provision

under Order 18, Rule 3A of the Code does not in terms indicate the stage at which such an application should be made. But, however, the learned

Judge took a different view. Perhaps, ;it may be that none of the judgments referred to above had been brought to the notice of the learned Judge.

Hence I am unable to agree with the principle laid down in the judgment reported in Ayyasami Gounder and others Vs. T.S. Palanisami Gounder, ;

especially when there are number of judgments wherein it has been held that Order 18, Rule 3A is only directory and it is open to the party to

appear as a witness at a later point of time by obtaining the permission of the court. Those judgments had in fact referred to the precedents and

found support for such view. Hence I hold 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 commencement of the proceedings to examine him/her as a witness at a later point of time. Even if the evidence on their side

is over, it is open to them to appear as witness, provided the court permits.

The only aspect for consideration is whether the lower court is correct in accepting the reason given by the respondent for examining herself at

that stage. In the affidavit, she has stated that she was aged and she was not well and could not move about at the commencement of the

proceeding. Hence she did not appear as a witness. This statement has not been specifically denied by the petitioners in their counter affidavit. The

entire counter affidavit proceeds only on the question of law. The trial court has rightly accepted the explanation given by the respondent and

granted permission. Hence I am of the view that there is no infirmity in the order of the lower court.

Accordingly the civil revision petition is dismissed. However, there will be no order as to costs.