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Andhra Pradesh High Court
Judges : J.CHELAMESWAR, LINGARAJA RATH
Devarapalli Pattabhi Ramaiah - Appellant
Versus
Davuluri Lakshmi Prasanna - Respondent
Decided On : 09-03-97
Held : rule shows that it is in two parts, the first part of the rule creates a mandatory obligation on the litigant to examine himself as a witness before any other witness on his behalf is examined. If the rule were to end there, there would have been no scope perhaps to interpret the rule except follow the letter of the rule. But the latter half of the rule provides power to the Court to permit deviation from the general principle enshrined in the first part and accord permission to the litigant for reasons to be recorded by the Court. As far as the second part is concerned, the rule is not very definite as to the point of time at which such permission can be accorded.
Rule 3-A of the Code of Civil procedure was introduced by Act 104 of 1976 into the Code of Civil Procedure. Pursuant to the recommendations of the Law Commission in the 54th report with an intention to prevent the notorious practice indulged in by litigants in examining other witnesses first and later covering up the gaps by the examination of the parties themselves later, to substantiate their case. If that is the mischief sought to be remedied by the amended Rule 3-A of Order 18 of the Code of Civil Procedure, the order of the examination of such of the defendants who wish to examine themselves as witnesses in support of their defence cannot be left to the choice of the plaintiff. The defendants are entitled to put forward the best defence available to them. In putting forward such defence it is for them to decide as to which one of the defendants should be examined first as a witness to effectively defend the case. That right cannot be made subject to the arbitrary or even a designed choice of the plaintiff. No doubt as against other witnesses whom the defendants wish to examine in support of their case the defendants must get themselves examined first unless the Court permits otherwise.
there is no inflexible rule as to the point of time at which the permission of the Court can be accorded under Rule 3-A of order 18 of the Code of Civil Procedure against the abuse of the process is that the Court while according permission to depart from the general rule enshrined under Rule 3-A of the Code of Civil Procedure is required to record reasons and goes without saying that such reasons must be cogent and germane to the issue. Once the reasons are recorded, they are open to scrutiny by the appellate Courts.
( 1 ) R. P. No. 642 of 1994: the present Civil Revision Petition arises out of an order passed in LA. No. 190 of 1994 in Original Suit No. 16 of 1989 on the file of the Subordinate judge, Ramachandrapuram, dated 10-2-1994.
( 2 ) THE respondents in the revision petition filed a suit against the petitioner herein in Original Suit No. 16 of 1989 for declaration of their title and for possession and other reliefs in respect of the suit schedule properties presumably on the basis of a Will (the facts are not very clear from the record ). Trial of the suit commenced. Some witnesses on behalf of the plaintiffs were examined. The second plaintiff filed a petition in I. A. No. 190 of 1994 under order 18 Rule 3-A read with Section 151 of the Code of Civil Procedure praying that she may be permitted to examine herself as a witness. The said application was opposed by the petitioner herein. However, the learned Subordinate Judge by his order dated 10-2-1994 allowed the said I. A. Questioning the said order, the present Civil Revision Petition came to be filed. While the matter was being heard by a learned Single Judge of this Court it appears that it was reported to the learned Single Judge that another Civil Revision Petition No. 825 of 1994 involving similar question had been referred to a Division Bench. Therefore, the learned single Judge referred the matter to Division Bench.
( 3 ) WHEN we actually examined C. R. P. No. 825 of 1994 we found that it was decided on a limited issue holding that the affidavit filed in support of the order 18 Rule 3-A of the Code of Civil Procedure application did not disclose sufficient reasons to enable the Court to record its satisfaction to permit the petition to be ordered. In view of the fact that the matter raises a question of law and having regard to the fact that the question involved in this matter is likely to be raised all over the State frequently, notwithstanding the fact that there was no proper reference order we decided to proceed with hearing of these two matters.
( 4 ) THE learned Counsel for the petitioner made two submissions. The first submission is that in view of the provisions of Order 18 Rule 3-A of the Code of Civil Procedure, the trial Court lacked jurisdiction to permit the respondent/ plaintiff to examine herself as a witness after some witnesses were examined on her behalf. He vehemently contended that any such permission ought to have been sought for by the respondent/plaintiff before any other witness on behalf of the plaintiff was examined. The plaintiffs having failed to obtain permission prior to the commencement of the examination of the witnesses on their side cannot seek such permission at a belated stage and the lower court lacked jurisdiction to accord such permission in view of the abovementioned provision and further that the said provision was mandatory which calls for strict compliance.
( 5 ) THE second submission is that assuming that permission contemplated under Rule 3-A of the Code of Civil Procedure can be accorded at any stage of the trial, on the facts of the present case there is no justifiable reason for the Court to record signifying its satisfaction to permit such a belated application.
( 6 ) NUMBER of decisions were cited at the Bar. Before we proceed to examine these authorities, it would be more appropriate to analyse the language of order 18 Rule 3-A of the Code of Civil Procedure which reads as follows: "order 18 Rule 3-A: 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. "
( 7 ) A reading of the above rule shows that it is in two parts, the first part of the rule creates a mandatory obligation on the litigant to examine himself as a witness before any other witness on his behalf is examined. If the rule
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