V. Gajendhiran and V. Kalakannan vs P. Venkatesan and Others

S. Tamilvanan, J.—The revision has been preferred under Article 227 of the Constitution of India challenging the order dated 19.08.2013

passed in I.A. No. 622 of 2013 in the suit in O.S. No. 185 of 2010 on the file of the Subordinate Court, Poonamallee. The revision petitioners are

the plaintiffs in the suit in O.S. No. 185 of 2010 and the same was filed seeking partition and separate possession of 2/9th share in the suit

properties and permanent injunction and other reliefs, wherein I.A. No. 622 of 2013 was filed by the defendants 1 to 7 who are respondents 1 to

7 herein, seeking an order to re-open the suit for letting further evidence by the defendants 1 to 7. The petitioners/plaintiffs filed their counter raising

their objections. The Court below, having considered the plea of both sides, allowed the above Interlocutory Application. Aggrieved by which, the

revision has been preferred by the revision petitioners/plaintiffs.

Mr. P.R. Thiruneelakandan, learned counsel appearing for the petitioners, submitted that the written statement filed by the first defendant was

adopted by the defendants 2 to 7 and the first defendant was examined as D.W.1 before the Court below. According to him, the fourth defendant

should not be examined as leave had not been obtained from the Court. It was also brought to the notice of this Court by the learned counsel for

the petitioners/plaintiffs that the first defendant is the father of the fourth defendant and they have engaged the same counsel to defend their case,

hence, after examination of the first defendant as DW1, if the fourth defendant is examined as D.W.2, that would fill up the lacuna and prejudice

the rights of the petitioners/plaintiffs. In this regard, learned counsel drew the attention of this Court to Order XVIII Rule 3A of the Code of Civil

Procedure, which reads as follows:

[Order XVIII Rule 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.

Mr. V. Raghavachari, learned counsel appearing for the respondents 1 to 7, submitted that the aforesaid provision is not applicable to the facts

and circumstances of the present case. According to him, if a party wishes to examine himself after the examination of independent witnesses, he

must have obtained leave from the Court. In the instant case, the first defendant was examined as DW1. It cannot be disputed that the fourth

defendant is also one of the parties to the suit and therefore, there is no bar for examining the fourth defendant as DW2, after examination of the

first defendant as D.W.1.

Learned counsel for the petitioners/plaintiffs in support of his contention relied on the following decisions:

Bhanumathy Vs. M. Venkatesan and Others,

Ayyasami Gounder and others Vs. T.S. Palanisami Gounder,

V. Jayakannan and Others Vs. V.K. Sampath alias V.K. Sampathkumar,

Narasimhan and Mahadevan Vs. Jayakumari,

Ravi and Gurunathapillai Vs. Ramar,

M. Kumar Vs. S. Subbiah Kone and Shiek Mohammad,

S. Ramachandra Reddy and Vasanthi Vs. Natarajan, Karunakaran and Suguna, .

Per contra Mr. Raghavachari, learned counsel for the respondents 1 to 7 relied on the following decisions:

Ravi and Gurunathapillai Vs. Ramar,

Chidambaram Vs. Ratnam,

Samidurai and Others Vs. Kanakayal,

(i) In Bhanumathy Vs. M. Venkatesan and Others, , this Court (Sathiadev, J.) has held that in view of Order 18 Rule 3A, since the petitioner

therein had authorised her husband to depose evidence on her behalf as plaintiff''s witness, subsequently, after examining the said witness, the

plaintiff was not entitled to be examined herself, in view of Order 18 Rule 3A of C.P.C. The aforesaid decision is not applicable to the present

case, because, there, the husband was only an independent witness. After examining him, without getting leave from the Court, the plaintiff cannot

depose evidence as a matter of right. In the present case, D.W.1 was a party to the suit being the first defendant and similarly, the fourth defendant

is also a party to the suit and not an independent witness, hence order XVIII Rule 3A of the CPC is not applicable to the facts of this case.

(ii) In Ayyasami Gounder and others Vs. T.S. Palanisami Gounder, , this Court (Ratnam, J.) has held that permission should be sought by a person

prior to examination of other witnesses on his behalf and failure of person to give reasons for examining himself at later stage cannot be justified.

When the person deliberately keeping himself from deposing evidence at the time of execution of evidence. Order permitting his examination at

later stage could be set aside. The Court while considering the application for permission should concern as to why party is seeking such

permission and not whether he would or would not fill lacunae in evidence of other witnesses.

(iii) In Narasimhan and Mahadevan Vs. Jayakumari, , this Court (V. Kanagaraj, J.) has held, where the first defendant for himself and as Power of

Attorney Agent of second defendant had adduced evidence and thumb impression expert was also examined as non-party witness, thereafter, the

second defendant could not be examined as a party witness, in view of the provision under Order XVIII Rule 3A of the Code of Civil Procedure.

(iv) On the aforesaid decision, the relief sought for was to examine the party witness after examining non-party witnesses without obtaining leave

from the Court or without assigning proper reason for examining the party witness at later stage. However, in V. Jayakannan and Others Vs. V.K.

Sampath alias V.K. Sampathkumar, , this Court (M.N. Chandurkar, C.J.) has held in paragraph-7 which reads as follows:

The learned IV Assistant City Civil Judge, took notice of the fact that defendants 1 to 4 had filed a common written statement, and therefore,

the defence to the suit was common and that the counter in reply to the affidavit protesting against the permission to examine defendant No. 2 as a

witness had also been filed by defendant No. 2 as a witness had also been filed by defendant No. 1 for himself and on behalf of the defendants 2

to 4. Reference, was also made to the fact that defendants 2 to 4 had engaged the same counsel to decision of this Court in Marappa Gounder and

Others Vs. Sellappa Gounder and Others, in which the learned Judge, Sathiadev, J., took the view that unless the Court for reasons to be

recorded permits a party to examine as a witness at a later stage. Taking note of the fact that no application was filed seeking permission of the

Court to examine the second defendant the learned Subordinate Judge held that, having regard to the provisions of O. 18, Rule 3-A of the Code

of Civil Procedure, the second defendant cannot be examined as a witness at this stage. This order is challenged by defendants 1 to 4 in this

revision petition.

It was further held in paragraph -14 which reads thus:

...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. Similarly it would not be permissible for a party to the suit to be examined as a witness of another party if the defence

is common.

Mr. V. Raghavachari, learned counsel appearing for the respondents 1 to 7 drew the attention of this Court to Ravi and Gurunathapillai Vs.

Ramar, and argued that the earlier decision reported in V. Jayakannan and Others Vs. V.K. Sampath alias V.K. Sampathkumar, was overruled by

a Division Bench of this Court (P.K. Misra and P.R. Shivakumar, JJ), wherein the decision rendered in Ayyasami Gounder and others Vs. T.S.

Palanisami Gounder, , V. Jayakannan and Others Vs. V.K. Sampath alias V.K. Sampathkumar, and other similar decisions were also referred to

by the Division Bench of this Court.

In R.N. Jadi and Brothers and Others Vs. Subhashchandra, , the Hon''ble Supreme Court while dealing with the provisions contained Order 8

Rule 1, C.P.C., has observed as follows:

All the rules of procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent,

but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily

be denied the opportunity of participating in the process of justice dispensation. Unlike compelled by express and specific language of the Statute,

the provisions of the C.P.C. or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to

meet extraordinary situations in the ends of justice.

Similarly, Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, , it was held thus:

...Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a Penal

enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of Sections that leaves no room for

reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means

designed for the furtherance of justice be used to frustrate it.

The Division Bench of this Court (P.K. Misra and P.R. Shivakumar, JJ.), 2005 (1) CTC 36 has held thus:

A perusal of the decisions of different High Courts indicate that the provision contained in Order 18, Rule 3A has been considered to be

directory in nature. Even the provision itself contemplates that as a general rule, if the party wants to examine himself as a witness, he should be

examined before other witnesses are examined. However, on the basis of an Application of the party, he can be permitted to be examined as a

witness after examination of other witnesses. While granting permission, the Court is required to indicate reasons in writing. However, the question

is whether as an inexorable rule such permission has to be sought for at the beginning before any other witness is examined on behalf of the party

or whether even at a subsequent stage after examination of some or all the witnesses the party himself can seek for permission?

As observed in the various decisions and more particularly in the decisions of the Division Benches of Punjab & Haryana, Jammu & Kashmir,

Patna and Orissa High Courts, what is necessary is that before giving such permission, the Court is required to give reasons and obviously the

reasons must be relevant. However, to lay down as an inexorable rule that in no case such an Application can be filed after the examination of any

other witness may result in injustice.

In Jagannath Nayak Vs. Laxminarayan Thakur and Others, (which was subsequently over-ruled in Maguni Dei Vs. Gouranga Sahu and Others,

, the Orissa High Court has held as follows:

Having given our careful consideration to all the contentions put forward by counsel for the parties we are clearly of the view that Order 18,

Rule 3A is of directory nature. In proper case the Court has got power to Examine a party at a later stage even though he has not obtained the

Courts 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.

It has been categorically held by the Hon''ble Supreme Court in R.N. Jadi and Brothers and Others Vs. Subhashchandra, , that all the rules of

procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal and not stringent, since the fact

remains that the object of prescribing procedure is to advance the cause of justice. It cannot be disputed that law is only a means and justice is the

end and further, procedural laws shall be liberally interpreted so as to meet the ends of justice and that was a view taken by the Hon''ble Apex

Court even in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, .

As per Order 18 Rule 3A of the Code of Civil Procedure, if a party wishes to examine himself after examination of non-party witness, he must

obtain leave from the Court and leave shall be granted by considering the reasons assigned for examining the party witness, after examining the

other witnesses. Even that was held by the Division Bench of this Court reported in Ravi and Gurunathapillai Vs. Ramar, that it is only directory in

nature and the said provision is not mandatory. It should be decided by the Court on the facts and circumstances of each case that whether a party

wishes to examine himself at a later stage in order to fill-up the lacunae of the evidence of third parties or otherwise. However, it has been made

clear that rules of procedure are only handmaid towards rendering justice. While interpreting any procedural law, the purpose of rendering justice

should not be defeated on technical grounds. In the instant case, this Court is of the view that though the written statement was filed by the first

respondent and that was adopted by the respondents 2 to 7 and they had engaged the same counsel. However, they are parties to the proceedings

as defendants 1 to 7. It is not the case of the revision petitioners/plaintiffs that after examining a non-party witness as DW1, without seeking leave

from the Court, the respondents 1 to 7 wish to exam a party witness as DW2. It is an admitted fact that DW1 is the first defendant and the fourth

defendant has to be examined as D.W.2, who is also a party to the suit and hence, the said witness, DW1, cannot be construed as a non-party

witness in this case.

Mr. V. Raghavachari, learned counsel for the respondents 1 to 7 submits that the first defendant who is father of the fourth defendant. He had

executed the suit settlement deed in favour of the fourth defendant, hence DW1 could speak only about the settlement deed executed by him in

favour of his son the fourth defendant herein and there must be an acceptance of the settlement deed by the fourth defendant as settle, for which,

the competent witness to speak about the same is only the fourth defendant. On the said circumstances, the evidence of DW1 alone would not be

sufficient. On behalf of the fourth defendant, the first defendant cannot depose evidence that the settlement deed executed by him was accepted by

the fourth defendant and also acted upon, for which, the competent witness to depose the acceptance and to depose that it was acted upon would

be the fourth defendant. Hence, there is need to examine the fourth defendant as DW2 for which Order XVIII Rule 3A of the CPC is no bar. It is

relevant to refer Order XVIII Rule 3A of the Code of Civil Procedure, which reads as follows:

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.

As per Order XVIII Rule 3A of the Code of Civil Procedure, if any party witness has to be examined after examining a non-party witness leave

must be obtained from the Court by assigning reason for seeking permission to examine the party witness at a later stage. However, the same is not

applicable for examining witnesses.

It is well settled that the procedural law is only a handmaid to render justice, hence, Court has to interpret the same based on the facts and

circumstances of each case in order to do proper justice.

On the facts and circumstances of the case on hand, the petitioners/plaintiffs cannot raise a plea that the first defendant who had executed the

settlement deed himself should depose that it was accepted by the fourth defendant. The fourth defendant is the competent witness, who could

depose evidence on the acceptance of the settlement deed and not the first defendant. Therefore, this Court is of the view that there is no error or

infirmity in the impugned order passed by the Court below so as to warrant any interference by this Court, invoking Article 227 of the Constitution

of India. In the light of various decisions rendered by the Hon''ble Apex Court and various High Courts including this Court, this Civil Revision

Petition is liable to be dismissed. In the result, the Civil Revision Petition is dismissed. No order as to costs.