Order XVIII Rule 3A CPC mandates initial party testimony but permits later examination for recorded reasons even if sought subsequently, exercised judicially in peculiar facts to balance justice and prejudice.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition filed under Article 227 of the Constitution of India, the petitioners/defendants have assailed order dated 09.06.2023, passed by the learned Trial Court, in terms whereof, an application filed under Order 18, Rule 3-A of the Code of Civil Procedure read with Section 151 thereof for the grant of permission to the plaintiff to appear as a witness has been allowed.

2. Case of the petitioners is that the respondent/plaintiff has filed a civil suit, which is pending adjudication before the learned Trial Court. In terms of the averments made in the petition, the suit was listed before the learned Court below for recording the evidence of the plaintiff on 25.02.2020, 11.03.2020, 04.09.2020, 28.04.2022, 25.05.2022, 15.06.2022, 19.07.2022, 19.09.2022 and 05.11.2022 but plaintiff did not appear to depose in the Court and after the recording of the statements of plaintiff’s witnesses, he for first time entered the witness box for his examination on 22.12.2022. This was objected to by the petitioners/ defendants on the ground that the plaintiff should have taken leave of the Court at the first instance to be examined at a later stage. As a result of this objection, the plaintiff filed an application under Order 18, Rule 3-A of the Code of Civil Procedure which has been allowed by the learned Trial Court.

3. Learned Senior Counsel for the petitioners argued that the impugned order is per se perverse and not sustainable in the eyes of law. By placing reliance on the provisions of Order 18, Rule 3-A of the Code of Civil Procedure, learned Senior Counsel submitted that in terms of the statutory provisions 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 the reasons to be record permits him to appear his own witness at a later stage. Learned Senior Counsel submitted that this statutory provision is mandatory and it has been so held by this Court in Iqbal Singh vs. Kamal Dev and another, CMPMO No. 176 of 2020, decided on 27.02.2020. Learned Senior Counsel accordingly submitted that in light of these facts, as the permission granted by the learned Trial Court was not sustainable in the eyes of law, the impugned order was liable to be set aside. Learned Senior Counsel submitted that as no permission was sought by the plaintiff from the Court that he should be allowed to be examined after recording of the statements of other witnesses, learned Trial Court could not have allowed the application filed by the plaintiff. Learned Senior Counsel further submitted that as the order passed by learned Trial Court was perverse on the face of it, the present petition deserves to be allowed.

4. On the other hand, learned Counsel for the respondent/ plaintiff submitted that there was no error in the impugned order. He argued that the suit was a summary suit instituted under Section 6 of the Specific Relief Act, seeking recovery of possession of the premises, wherein the plaintiff was a tenant. Learned Counsel submitted that the plaintiff had submitted a list of 9 witnesses, including himself as a party witness and on the first date of recording of the evidence, i.e. 15.01.2020, three witnesses were present and examined. Learned Counsel further submitted that on th