Madras High Court
Ravi vs Ramar on 11 October, 2007
Author: P.K. Misra
Bench: P.K.Misra, P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/10/2007 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRP PD (MD)No.508 of 2004, CRP PD (MD)Nos.22, 371, 446 and 777 of 2005, 6 and 981 of 2006 and 1120 of 2007 CRP PD (MD) No.508/2004: 1.Ravi 2.Gurunathapillai ... Petitioners vs. Ramar ... Respondent Civil Revision under Article 227 of the Constitution of India against the order of the learned Single Judge dated 13.10.2004 made in I.A.No.657 of 12004 in O.S.No.217 of 2004 on the file of learned district Munsif, Uthamapalayam. !For Petitioner ... Mr.G.Rajaraman for in CRP 508/2004 Mr.M.C.Swamy in CRP 22/2005 ... Mr.K.Govindarajulu in CRP 777/2005 ... Mr.T.Selvakumaran in CRP 981/2006 ... Mr.R.Anand in CRP 6/2006 ... Mr.M.S.Suresh Kumar ^For Respondent in CRP 981/2006 ... Mr.F.X.Eugene for R-2 in CRP 777/2006 ... Mr.K.P.Krishnadoss in CRP 6/2006 ... Mr.K.Balasubramanian in CRP 1120/2007 ... Mr.A.Harikaran for R-2 :ORDER
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. An exception can be made only for valid reasons, that those valid reasons will depend on the facts and circumstances of each case. The requirement of O.18, Rule 3-A that the court must record its reasons also indicates that Rule 3-A has specifically ruled out any permission being granted at a later stage after the witnesses are already examined. ..."
6.In the latter decision, reliance was placed upon an earlier decision of the Madras High Court reported in 1985 MLJ REPORTS 35 = AIR 1985 Mad. 183 (MARAPPA GOUNDER AND OTHERS v. SELLAPPA GOUNDER AND OTHERS). However, a careful reading of the aforesaid decision clearly indicates that the learned single Judge, while deciding the above issue, did not adopt the inflexible stand reflected in the decisions reported in AIR 1990 Madras 237 and 1991(II) MLJ 77 (cited supra). In 1985 MLJ REPORTS 35 = AIR 1985 Mad. 183(cited supra), the learned single Judge, while recognising the object for which such provision was introduced, observed :-
"5. When the rule contemplates permission to be granted by Court for a party to a proceeding to be examined at a later stage, it is indicative that there is no total ban against parties being examined after their witnesses are put in the witness box. That was why, in the decisions above referred to, it was held, that the rule is directory in nature. This would not mean that the rule could be transgressed indiscriminately in an unbridled manner. A duty is cast on the Court to record reasons, which means that valid and compulsive grounds must be made out, for postponing the examination of parties to the suit. If a party to the suit desires to be examined later on, he should seek prior permission before the other witnesses are examined. In its absence, it can be sought later on at the time when the party is put in the witness box, if by mischance any of his witnesses have been already examined, without securing earlier permission. Whenever permission is sought for, it is obligatory on the part of the Court to record reasons, by passing a written order, either granting or refusing it. If permission is sought in the initial stage before any witness is examined, then reasons to be given should relate to the justifiable inability on the part of the party to first examine himself. Before granting permission, it should hear the objections, if any, of the other side, and then alone permit any witness of the party to be examined.
6. In such of these cases wherein without prior permission witnesses of the party had been examined, and later on the party wishes to appear as a witness, the Court is duty bound to find out, whether on the party being examined at that stage, it would result in filling up any blanks or lacunae left out in the evidence already given, and whether wantonly be avoided the witness box with ulterior motives, and whether he was placed in such a situation or circumstances which had disabled him from being examined earlier etc. Unless compelling strong circumstances which are relevant and germane had existed, permission to a party to a proceeding to examine himself after his witnesses had been examined, ought not be granted. The intention of Parliament in enacting the rule, which had come into existence on the recommendation made by Law Commission, had resulted in a revised procedure being evolved, according to which a Court has to record reasons mentioning the circumstances which it takes into consideration for granting permission. Failure to give valid reasons, would vitiate the order, and the evidence recorded without permission, cannot be treated as part of the records in the suit. ....."
7.Some of the other decisions of the Madras High Court indicate that the provision is flexible enough to permit a party to examine himself as a witness at a later stage and such permission can be sought for not only at the beginning before party adduces his evidence, but also at a later stage. The decision reported in 1986 MLJ REPORTS (II) 456 (A. KARRUPPUSWAMY v. GNANA SOUNDARI) is of the latter type where it was observed that in a fit case, the Court can also permit party to be examined as a witness, at a later stage even if such a petition had not been filed in the initial stage, before examination of other witnesses of such party.
8.Such doubt or difference of opinion, which is persistent in the decisions of the Madras High Court seems to have been settled in other High Courts. From the reported decisions, it appears that first such controversy was raised in the decision reported in AIR 1978 ORISSA 1 (JAGANNATH NAYAK v. LAXMINARAYAN THAKUR), wherein a learned single Judge of Orissa High Court observed that the provisions contained in Order 18 Rule 3A are mandatory in the sense that if a party wants to examine himself as a witness after examination of other witnesses, such party has to seek for prior permission of the Court and if without obtaining prior permission of the Court other witnesses have been examined, at that stage, no such petition seeking permission to be examined as a witness can be entertained.
9.However, even before the ink had dried in the aforesaid judgment, a similar question was referred to a Division Bench of the Orissa High Court in Maguni Dei v.Gouranga Sahu - AIR 1978 Orissa 228, where the Division Bench (consisting of Justice R.N. Misra, as His Lordship then was), while noticing the distinction between a mandatory provision and a directory provision and analysing the concept in depth, held that the decision in AIR 1978 Orissa 1 (cited supra) had not been correctly decided and specifically over-ruled the same. It was observed in the said decision :-
"16. 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, R.3-A is of directory nature. In proper cases the Court has got power to examine a party at a later stage even though he has not obtained the Court's 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."
10.Similar view was expressed in AIR 1988 Orissa Page 55 - Khadi Kissan v.Thubra Kissan. Justice D.P.Mohapatra, J (His Lordship as he then was) observed that the provisions in Order 18 Rule 3(A) are directory and not mandatory.
11.Even before the Division Bench of Orissa High Court in AIR 1978 Orissa 238 had the occasion to deal with the matter, a Division Bench of Punjab High Court in the decision reported in AIR 1979 Punjab & Haryana 72 (M/s. KWALITY RESTAURANT, AMRISTAR v. SATINDER KHANNA), specifically dissented from the view expressed by the learned single Judge of the Orissa High Court in AIR 1978 Orissa 1 and observed :-
"9. The learned Single Judge in Jagannath Nayak's case (supra) had then sought support for his view on the ground that the rule was mandatory and not directory. Assuming it to be so, it is clear that the mandate laid therein regarding the party appearing before his other witnesses has been itself provided with an exception where permission can be accorded by the Court for adequate reasons. When the provision itself provides both the mandate and an exception to the rule, the one cannot be divorced from the other. The significant thing to highlight here is that the question at issue is not with regard to the ordinary rule that a party shall appear before any witness on his behalf but pertains to the stage at which permission to appear at a later stage is to be secured. Whilst the ordinary rule with the exception may be deemed as mandatory, there is nothing inflexible in Rule 3-A with regard to the stage of the permission. For the reasons aforesaid, with great respect we are compelled to record our dissent view from the view expressed in Jagannath Nayak's case (supra).
10. We are inclined to hold that a narrow view of a procedural provision would not tend to subserve to the interest of justice. The stage at which the requisite permission under the statute is to be sought is not so vital a matter which should debar the litigant later from seeking the permission or inexorably stifle his evidence if he once misses the opportunity of securing such permission at the very time when he is to commence leading his evidence.
11. We are, therefore, of the view that such permission may be sought at any stage and if the Court finds merit in the same it would not be debarred from proceeding to such a prayer."
(emphasis added by us)
12.This Division Bench decision of Punjab High Court has been subsequently followed in several other decisions of the Punjab High Court.
13.The view of Patna High Court is also similar as apparent from the decision of a Division Bench reported in AIR 1986 Patna 315 (PRAVESH KUMARI AND OTHERS v. RISHI PRASAD AND OTHERS). It was observed in the said case as follows :-
"3. The only point that has been urged before us is that the view taken by the courts below that the provisions of R.3A of O.XVIII of the Code of Civil Procedure are mandatory is erroneous. Learned counsel in support of his contention has referred to the Bench decision in the case of Rameshwar Sharma v. Surju Prasad, 1979 BBCJ (HC) 637 wherein it has been held that the provision is directory and that the case reported in 1978 BLJR 600 was wrongly decided. In view of the aforesaid bench decision, there is no difficulty in accepting the argument of learned counsel. Plaintiff No.2 was examined as P.W.13 and had proved the documents. His evidence along with exhibits which he had proved should not have been expunged from the record. I may, however, hasten to add here that I should not be understood to mean that because R.3A of O.XVIII of the CPC is directory in nature, therefore, the same need not be observed. It must be observed. But its non-observance in all cases should not lead to the extreme penalty of expunging the evidence which has already been recorded."
(emphasis added by us)
14.A learned Single Judge of Jammu & Kashmir High Court in the decision reported in AIR 1998 J & K 4 - Romesh Kumar vs.Chanan Lal, by relying upon the decision of the Madras High Court reported in AIR 1985 Madras 183 and dissenting from the view expressed in the decision of Orissa High Court in AIR 1978 Orissa 1 (which was subsequently over-ruled in AIR 1978 Orissa 228) held that the provisions contained in Order 18 Rule 3(A) are directory in nature and observed as follows:
"3.It is true that a duty is cast on the Court by Order 18, Rule 3-A, C.P.C. to record reasons before permitting a party to appear as his own witness at a later stage when its witnesses had been examined by the Court. At the same time it cannot be denied that the rules of procedure are always to be interpreted liberally in order to advance the cause of justice. The word 'shall' used in the above referred rule makes it obligatory for a party to the suit to appear as a witness before any other witness on his behalf is examined. But at the same time if it chooses to appear as a witness at a later stage, he has to seek permission of the Court and at that time the Court while permitting or refusing him to appear as a witness has to record reasons. In this manner thus this provision is directory in nature and not mandatory. Orissa High Court in AIR 1978 Orissa 1 has treated this Rule mandatory in nature while Madras High Court in AIR 1985 Madras 183 relying upon AIR 1982 SC 1240 has held that Rule 3- A contemplates regarding reasons to be recorded by the Court while permitting party to appear as a witness and it is undesirable for a Court to proceed on oral permission and much worse if such a permission had been granted without reasons. This Court in case Mohanlal v.Vinod Kumar, 1988 Kash LJ 150 has held this rule to be directory in nature. In whatever manner we interpret Rule 3-A it comes out that a party can appear as a witness at a later stage with permission of the Court if it show sufficient reasons for it and the Court while permitting it to appear as a witness after its witnesses had been examined, has to record reasons and to see whether the party is not appearing in order to fill up any blanks or lacuna left out in evidence already given. ...."
(Emphasis added by us)
15.In AIR 1969 Rajasthan Page 9 (Lajjaram v.Khubiram), while considering a similar provision which has been incorporated by way of amendment in Rajasthan, the learned Single Judge had observed:
"5..... All that is required is that there should be an application to seek such a permission and the Court may grant permission. It is not necessary that there should be an application in writing. ....."
It is apparent that the learned Judge has expressed the view that such provision is directory in nature.
16.It is well settled proposition of law that rules or procedure are handmaids of justice and not its mistress. In R.N.Jadi and Brother v.Subhashchandra - 2007 (4) CTC 331, the Supreme Court, while dealing with the provisions contained in Order VIII Rule 1 CPC, observed:
"9.All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual 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 CPC 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.
....
11.The processual law so dominates in certain systems as to over power substantive rights and substantial justice. the humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito juticiae where the tragic sequel otherwise would be wholly inequitable. -- Justice is the goal of jurisprudence - processual, as much as substantive. (See. Sushil Kumar Sen v. State of Bihar, 1975 (1) SCC 774).
....
14.It is also to be noted that though the power of the Court under the Proviso appended to Rule 1 of Order 8 is circumscribed by the words -- "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form."
17.In AIR 1955 SC 425 - Sangram Singh v.Election Tribunal Kotah & Anr., it was observed:
"... 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."
18.A perusal of the decisions of different High Courts indicate that the provision contained in Order 18 Rule 3(A) 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?.
19.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.
20.Keeping in view the principle that procedural rules are normally considered as directory unless the consequence of not following the procedure is specifically indicated, it would be appropriate to hold that the Court can give permission to the party to examine himself at a later stage even if no such permission had been sought for at the very threshold. As a matter of fact, save and except in one or two decisions of the single Judges of the Madras High Court, most of the High Courts, including many of the Judges of Madras High Court, have preferred to follow a more liberal path of laying down the proposition that even where such permission has not been sought for at the threshold, such permission can be granted for relevant reasons at a later stage. This is not to suggest that as and when such petition is filed the Court is bound to grant such permission merely for the asking. Obviously, the Court is required to consider the matter in its proper perspective and is required to find out as to why the party could not examine himself at the beginning and also as to why the application for seeking such permission was not filed at the threshold. If the Court finds that the party deliberately held himself back with a view to fill-up the lacunae in the evidence at a later stage, obviously such permission is to be refused irrespective of the fact whether permission is sought for at the threshold or at a later stage. If convinced on such aspects, the Court may permit the party to examine himself as a witness at a later stage. What is important is recording of reasons and obviously it means reasons which are germane to the matter, that is to say, relevant for the purpose.
21. It appears that in many cases petitions are filed after examination of other witnesses stating that the party or even his Advocate was not aware of the legal position and, therefore, the party could not be examined at the beginning.
Ordinarily such a plea cannot be countenanced as ignorance of law cannot be considered as an excuse, particularly when a party is represented by an Advocate. Moreover, the opposite party can always be vigilant and raise objection at the time of examination of a non-party witness before the examination of party witness and if such objection is raised, obviously the Court should record such objection.
22. The amendment was introduced with a view to ensure that the party examining himself as a witness at a later stage should not be permitted to fill-up the lacunae in the evidence adduced from his side. Where the Court comes to a conclusion that the party had deliberately with-held himself to be examined as a witness at a later stage with a view to fill-up the lacunae in the evidence, obviously permission cannot be granted to such a party to examine himself at a later stage. This is a relevant consideration where the application is filed, seeking permission to examine him at a later stage, either at the threshold of examination of other witnesses or subsequently after examination of all or some of the witnesses. The real test is to find out whether there was a genuine cause for which the party was not examined as a first witness. If for some genuine reasons, which could not be foreseen initially, a party wants to examine himself at a later stage, permission can be granted. Therefore, the overriding consideration is not whether the party makes the application at the threshold or at the subsequent stage, but whether for a genuine and germane reason the party is required to be examined at a later stage notwithstanding the fact that he was not examined as a witness at the beginning. This seems to be the essence of the different decisions of different High Courts. What would be the relevant facts and circumstances, obviously cannot be laid down in a strait jacket formula and obviously it is for the court concerned to deal with the matter in judicious manner. The reference is accordingly answered. The civil revisions shall now be placed before the learned single Judge for disposal, in accordance with law.
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