Examining a party as a witness after other witnesses breaches procedural fairness, potentially allowing evidence to fill gaps post-examination, seen as detrimental to justice.

1. The petitioners are the defendants in Special Civil Suit No. 1767 of 2008 filed for specific performance of a contract borne out from emails exchanged between the parties, instituted by the respondent herein. The subject matter of the suit property is agricultural land bearing Gat Nos.47, 49 and 51 admeasuring around 390 acres of Village-Vegre, Taluka-Mulshi, District-Pune.

2. The plaintiff had filed evidence affidavit of Mr. Vijendra Rao (P.W.1), Constituted Attorney of the respondent-Company. He was cross-examined and thereafter the plaintiff-Company filed evidence Affidavit of Mr. Arvind Gowda who happens to be one of the Directors of the Plaintiff-Company. The defendants objected to the evidence Affidavit of Mr. Gowda who is the Director of the Company on the ground that, if a party himself wishes to be examined as a witness, then party should step into the witness box before other witnesses in terms of the provisions of “ ”

Order 18 Rule 3A of the Code of Civil Procedure (CPC for short). Defendants also objected on the ground that the plaintiff, Company did not file list of the witnesses as required under Order 16 Rule 1 of the CPC. The defendants further objected to the evidence affidavit of Mr. Gowda (Director) on the ground that, at no point of time, the plaintiff- Company took permission to examine its Director at a later stage as required under Order 18 Rule 3A of CPC. It is also apprehended that, plaintiffs seek to improve his case which is not permissible as per the object underlying Order 18 Rule 3A of the CPC. Defendants preferred an application dated 3rd April, 2018 before the learned trial Judge raising abovementioned objections.

3. The learned Civil Judge, Senior Division, Pune allowed the said application on 16th July, 2018 and passed the following order :-

Affidavit of director of the plaintiff “

company- Shri. Arvind Gowda cannot be considered as evidence unless and until permission under Order 18 Rule 3A of Code of Civil Procedure is obtained by the plaintiff.

”

4. Thereafter, on 19th November, 2018 the respondent-Company applied for permission under Order 18 Rule 3A CPC to lead the evidence of Mr. Gowda.

5. The trial Court allowed the application by an order dated 2nd January, 2019. It is against this order, the defendants in the subject suit have approached this Court under Article 227 of the Constitution of India.

6. Heard Mr. Kanetkar, learned Counsel appearing for the petitioner and Mr. Mirpury, learned Counsel for the respondent.

7. Mr. Kanetkar, submits, the provisions of Rule 3A of Order 18 of the Code were inserted by Amending Act No. 104 of 1976 to the Code. The Code lays down a rule of law with regard to the sequence of witnesses to be examined in the Court. He submits that, the amendment was introduced with a view to prevent the persistent and notorious practice indulged by litigants in examining other witnesses first and covering up the gaps and lacunae in such evidence by examination of the party themselves at a later stage. He submits, where the Court comes to a conclusion that a party had deliberately withheld himself to be examined as a witness at a later stage with a view to fill up the lacuna in the evidence, permission cannot be granted to such party to examine himself at a later stage.

8. Mr. Kanetkar, to substantiate his submissions has taken me through the plaint, evidence affidavit of Mr. Vijender Rao