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Before the Madurai Bench of Madras High Court
THE HONOURABLE MR. JUSTICE P.K. MISRA & THE HONOURABLE MR. JUSTICE P.R. SHIVAKUMAR
Ravi & Another
Versus
Ramar
CRP PD (MD) Nos.508 of 2004, 22 of 2005, 371, 446 and 777 of 2005, 6 and 981 of 2006 and 1120 of 2007
Decided On : 11-10-2007
CPC - Scope of Order XVIII Rule 3A - AIR 1990 Madras 237, 1991(II) MLJ 77, 1985 MLJ REPORTS 35, AIR 1985 Mad. 183, 1986 MLJ REPORTS (II) 456, AIR 1978 ORISSA 1, AIR 1978 Orissa 228, AIR 1988 Orissa Page 55, AIR 1979 Punjab & Haryana 72, AIR 1986 Patna 315, AIR 1998 J & K 4, AIR 1969 Rajasthan Page 9, R.N.Jadi and Brother v. Subhashchandra, AIR 1955 SC 425 - The court considered the scope of Order XVIII Rule 3A of the CPC and the conflicting views of different High Courts on whether the provision is mandatory or directory. The court analyzed various decisions and concluded that the provision is directory in nature, allowing parties to seek permission to examine themselves as witnesses at a later stage, even if such permission was not sought at the beginning. The court emphasized the importance of recording reasons for granting such permission and highlighted the need for relevant and compelling reasons for examining a party at a later stage.
Fact of the Case:
The Civil Revisions were referred to the Division Bench to consider the scope of the provisions contained in Order XVIII Rule 3A of the Code of Civil Procedure (CPC) due to conflicting decisions of single Judges of Madras High Court and the importance of the question.
Finding of the Court:
The court found that the provision in Order XVIII Rule 3A of the CPC is directory in nature, allowing parties to seek permission to examine themselves as witnesses at a later stage, even if such permission was not sought at the beginning. The court emphasized the importance of recording reasons for granting such permission and highlighted the need for relevant and compelling reasons for examining a party at a later stage.
Issues: The conflicting views of different High Courts on whether the provision in Order XVIII Rule 3A of the CPC is mandatory or directory.
Ratio Decidendi: The provision in Order XVIII Rule 3A of the CPC is directory in nature, allowing parties to seek permission to examine themselves as witnesses at a later stage, even if such permission was not sought at the beginning. The court emphasized the importance of recording reasons for granting such permission and highlighted the need for relevant and compelling reasons for examining a party at a later stage.
Final Decision: The court concluded that the provision in Order XVIII Rule 3A of the CPC is directory in nature, allowing parties to seek permission to examine themselves as witnesses at a later stage, even if such permission was not sought at the beginning.
P.K. Misra, J.
These Civil Revisions are referred to the Division Bench to consider the scope of the provisions contained in Order XVIII Rule 3A of the Code of Civil Procedure, hereinafter referred to as "CPC". This provision was introduced by way of amendment in 1976. This matter has been referred to the Division Bench not only because of certain conflicting decisions of single Judges of Madras High Court but also because of importance of the question.
2. Order XVIII Rule 3-A CPC is extracted hereunder:
"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."
3. One line of thinking as expressed in some of the decisions is to the effect that a party should be examined as a witness before examination of his other witnesses and if the party wishes to appear as a witness at a later stage, after examination of his other witnesses, he must seek prior permission of the Court to appear as his own witness at a later stage.
4. From the reported decisions cited at the Bar, it is apparent that such a view has been expressed by Madras High Court in AIR 1990 Madras 237 (AYYASAMI GOUNDER AND OTHERS v. T.S. PALANISAMI GOUNDER), wherein it was observed:-
"6. ... When the object behind the introduction of O.XVIII, R.3-A of the Code is to put an end to the mal-practices 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.XVIII, R.3-A of the Code will 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 on the side of the party not seeking permission, as the non-obtaining of such permission at that stage would result in a breach of O.XVIII, R.3-A of the Code and to say that O.XVIII, R.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 O.XVIII, R.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." ....
5. Similar view was subsequently expressed in the decision reported in 1991(II) MLJ 77 (V. JAYAKANNAN AND OTHERS v. V.K. SAMPATHKUMAR), wherein it was observed: -
"10.....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 he 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 are examined is an exception. A
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