Andhra HC (Pre-Telangana)
Bonthu Venkataramana vs Patrevu Samba Murthy And Ors. on 26 March, 2004
Equivalent citations: 2004(3)ALD753, 2004(4)ALT230
ORDER P.S. Narayana, J.
1. Bonthu Venkataramana, Revision petitioner herein aggrieved by the order made in I.A. No. 632/2003 in O.S. No. 58/90 on the file of Senior Civil Judge, Vizianagaram had preferred the present civil revision petition under Article 227 of the Constitution of India.
2. The revision petitioner as petitioner/ plaintiff moved an application I.A. No. 632/ 2003 in O.S. No. 58/90 under Order 18, Rule 3A of the Code of Civil Procedure, hereinafter referred to as "Code" in short, praying for permission to examine the plaintiff as a Witness. The said application was opposed by 3rd respondent by filing a counter in detail arid the learned Senior Civil Judge, Vizianagaram after framing the Points for consideration ultimately allowed the application permitting the petitioner/plaintiff to be examined as a witness on his behalf, but he shall speak only on the aspect of fresh additional issue framed recently by the said Court and not on any other aspect during his chief-examination and directed the suit to be posted for trial to 24-/-2003. Aggrieved by the imposition of such condition, the Revision petitioner though successful in getting the application allowed to some extent had preferred the present civil revision petition.
3. Sri Upendra, the learned Counsel representing the Revision petitioner would contend that the learned Senior Civil Judge, Vizianagaram had not properly understood the scope and ambit of the order of remand dated 9-3-2000 made in A.S. No. 47/97 and Cross-objections in A.S. No. 47/97 on the file of Additional District Judge, Vizianagaram. The learned , Counsel also would contend that the learned Additional District Judge, Vizianagaram in fact had directed fresh disposal of the suit O.S. No. 58/90 according to law giving opportunity to both parties to adduce evidence which would include both oral and documentary. The learned Counsel also would maintain that the petitioner/plaintiff filed O.S. No. 58/90 for the relief of specific performance of the agreement of sale dated 1-4-1987 and when an order of open remand was made by the appellate Court, such restriction cannot be place on adduction of evidence while permitting the plaintiff to be examined restricting the same and limiting the same only to the additional issue. The learned Counsel also had explained the scope and ambit of Order 18, Rule 3A of the Code and placed reliance on certain decisions to substantiate his contentions.
4. Per contra, Sri G. Rama Gopal, Counsel representing the Respondents 3 and 4/defendants would contend that he is at a surprise why the civil revision petition is preferred though the petitioner/plaintiff was successful in getting an order in his favour. The learned Counsel while meticulously taking through the reasons recorded would contend that except making certain general observations, reasons to be recorded as contemplated by Order 18, Rule 3A of the Code, had not been complied with. The learned Counsel also would submit that at any rate, to avoid further delay, the contesting respondents though aggrieved of the order had not preferred any civil revision petition as against the order and hence the civil revision petition is devoid of merits and the same is liable to be dismissed. The Counsel also had placed reliance on certain decisions to substantiate his contentions.
5. Heard both the Counsel and perused the affidavit filed in support of the application and the counter filed by the 3rd respondent and also the impugned order.
6. The revision petitioner/petitioner/ plaintiff moved an application I.A. No. 632/ 2003 in O.S. No. 58/90 on the file of Senior Civil Judge, Vizianagaram under Order 18, Rule 3A of the Code praying for permission to examine himself as a witness. It is stated that inasmuch as it was thought that examination of his father would be sufficient, the father of the plaintiff was examined as PW-1 since he is looking after the affairs of the family as Manager of the family.
Apart from PW-1, certain other witnesses were examined and the said O.S. No. 58/90 was decreed. Aggrieved by the same, the Defendants 3 and 4/Respondents 3 and 4 had preferred Appeal A.S. No. 47/97 on the file of Additional District Judge, Vizianagaram and Cross-Objections also were filed. The learned Additional District Judge, Vizianagaram by judgment dated 9-3-2000 had made an order of remand. At Para-24, the appellate Court had observed:
"The other aspects raised by both the parties are not considered in this matter as the matter is remanded back to the lower Court and the parties are at liberty to raise their contentions afresh before the lower Court after its remand."
At Paras 25 and 26, the appellate Court further held:
"In the result, the appeal is allowed setting aside the judgment and decree of the lower Court passed in O.S. No. 58/90 dated 28-3-1997 and the matter is remanded back to the lower Court i.e., Senior Civil Judge's Court, Vizianagaram for fresh disposal according to law, after giving opportunity to both the parties to adduce evidence, if any, both oral and documentary, and dispose of the matter within three months from the date of receipt of the judgment and record from this Court and further directed to decide who is the absolute owner of the property i.e., whether D.1 or D.2 are the owners of the property. No order as to costs. C.F. paid by the appellants and Cross Objector shall be returned under Section 26 of A.P.C.F.&S.V. Act.
With regard to the cross-objections raised by the cross-objector-R2 herein also allowed setting aside the judgment and decree of the lower Court, in view of the directions given in the main appeal."
7. There is no controversy between the parties that the order of remand is an open remand order wherein it was specifically stated that opportunity be given to both the parties to adduce evidence, both oral and documentary. The main grievance ventilated by the revision petitioner is to the effect that having permitted the petitioner/plaintiff to be examined as a witness, a restriction of the nature imposed by the learned Senior Civil Judge should not have been imposed in the light of the language of the order of remand made by the appellate Court referred to supra. Order 18, Rule 3A of the Code dealing with Party to appear before other witnesses reads as 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".
This provision was introduced by the Amending Act 104 of 1976 and lays down a rule of law relating to the order of witnesses to be examined in the Court which is applicable to both the parties to the suit. The fact that the father of the plaintiff alone was examined and the plaintiff was not examined in the suit is not in controversy. But however in view of the fact that the Appeal was allowed and an order of remand was made, the petitioner/ plaintiff had thought it fit to examine himself as a witness and the stand taken him is that in view of an open order of remand made by the appellate Court, no restrictions of the nature of confining the letting in of the evidence through PW-1 in relation to a particular additional issue alone can be imposed. Much stress had been laid on the words "......he shall so appear before any other witness on his behalf has been examined......" and also on the words ".... unless the Court, for reasons to be recorded....". In Aitipamula Shivalingam and Anr. v. Aitipamulua Chinna Narsamma, , the Division Bench while approving the view in Franchis v. M. Lurdamma, , and disagreeing with the view expressed in Ch. Seetamma v. K. Malakonda Reddy, 1993 (3) ALT 192, awhile considering the question of interpretation of Order 18, Rule 3A of the Code had observed:
"A combined reading of the entire Rule 3-A gives us an impression that a party who wishes to examine himself/herself as one of the witnesses in support of his/her case, has to appear first as a witness before any other witness is examined on his/her behalf. The provision farther empowers the Court to permit a party to examine himself/ herself at a later stage also while recording reasons. Thus, it is clear that a party who wishes to examine himself/herself at a later stage, need not seek permission of the Court at the threshold itself. It is sufficient if a petition is filed as required under the provisions before the Court and the Court, if satisfied with the reasons explained in the affidavit filed in support of the petition, could allow the application/petition while recording its reasons.
It is not necessary for us to enlist the background under which the Rule 3-A of Order 18 CPC was introduced in the year 1976 on the recommendation of the Law Commission. The object of the amendment brought under Rule 3-A of Order 18 CPC is only to plug the loopholes when parties try to examine themselves as witnesses at a later stage only for the purpose of filling the gaps. The said mischief is sought to be remedied by an amendment under Rule 3-A of Order 18 CPC. We understand that the object is to prevent a party from covering the loopholes in the evidence of other witnesses examined earlier on its behalf. If the Court is satisfied that the aim of the party is not intended to fill up the lacunae or cover up the gaps, then the Court can permit a party for examining himself/herself at a later stage."
The same view was expressed in Devarapalli Pattabhi Ramaiah v. Davuluri Lakshmi Prasanna, (DB) . Strong reliance was placed on the decision of a learned Single Judge of this Court in D. Dhanalaxmi v. Sannadhi Prabha Krishna Alias Prabhavathi and Anr., , wherein no doubt the learned Judge had dismissed the Revision Petition while dealing with aspect of reopening of suit at the stage of arguments for letting any further evidence while dealing with Order 18, Rule 3A of the Code. The learned Judge had arrived at such a conclusion depending upon the facts of the said case. In Marappa Gounder v. Sellappa Gounder, , it was held:
"A duty is cast on the Court by Rule 3A 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 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."
In Ramaswamy Gounder v. Muthyammal, , it was held :
"The rights given to the parties under Order 18, Rule 3A of the C.P.C. is left intact despite a witness having come to be examined long before the commencement of the evidence on either side of the parties to the suit. Order 18, Rule 16 of the C.P.C. provides for examination of witnesses at the instance of any party at any time after the institution of the suit, which means even before the stage of examination of the witnesses commence in the usual course, as provided for under Order 18, Rules 1 to 3A of the C.P.C. Under these circumstances, opinion that the examination of the scribe in this case long before even without an order under Order 18, Rule 3A cannot in any way come in the way of the defendants in getting the relief as prayed for by them in the application filed under Order 18, Rule 3A of the C.P.C".
In Kwality Restaurant v. Satinder Khanna, , the Division Bench held:
"The intention of the Legislature is that the normal rule prescribed by the Legislature is that a party appearing as his own witness should do so before any one of his own witnesses. However, the rule is not inflexible and may be deviated from with the permission of the Court. No specific stage is prescribed or fixed by the statute for securing such permission. A party may perhaps as a matter of abundant caution apply at the stage of commencing his evidence and get the necessary permission and equally, if sufficient ground is made out he may secure such permission at a later stage."
In Swami Hari Harananda Giri v. Yogoda Satsangha Society of India, , it was held that Order 18, Rule 3A of the Code is only directory and not mandatory. The same view was expressed in Khadi Kissan v. Thubra Kissan and Anr., . In Maguni Dei v. Gouranga Sahu and Ors., AIR 1978 Orissa 228, the Division Bench disagreeing with the view expressed in Jagannath Nayak v. Laxminarayan Thakur, AIR 1978 Orissa 1, held at Para 16 as hereunder:
"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, Rule 3A 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."
In Rabindranath v. S.T.A. Tribunal, AIR 1979 Orissa 132, it was held that a party may be examined even after examination of other witnesses in the interest of justice and for a just decision in the case. In G.K. Rao v. A. Henry, , it was held:
"The sum and substance of Rule 3A of Order 18 is to the effect that if either the plaintiff or the defendant does not examine himself as the first witness, but examines himself at a later stage, the Court must for reasons to be recorded in writing permit such person to examine himself at a later stage. No doubt it is obligatory on the part of the Court to examine the plaintiff as first witness or if the plaintiff or defendant wants to examine himself at a later stage, reasons must be recorded by the Court as to why he should be examined at a later stage."
In Pravesh Kumar v. Rishi Prasad, , the Division Bench while observing that the provision of Order 18, Rule 3A of the Code is directory held :
"Order 18, Rule 3A is directory and not mandatory. But that does not mean that Rule 3A 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 had already been recorded. Therefore, where the plaintiff without obtaining leave of the Court under Rule 3A was examined as a witness at a later stage after the witnesses on his behalf had already been examined and deposed in support of his case and proved number of documents, his evidence along with the exhibits which he had proved should not be expunged for non-observance of Rule 3A."
In Subhas Chandra Agarwalla v. Golabi Devi Agarwalla, AIR 1992 Gauhati 20, while dealing with aspect of non-recording of reasons, the Court held :
"Where the Court while allowing the party to be examined on commission at a later stage under Order 8, Rule 3A did not record reasons for so allowing, and also, there was no indication that it applied its judicial mind to the facts and circumstances of the case before deciding to permit the party to be examined at a later stage, the order of the Court allowing the examination of the party on commission without passing any order in regard to the grant of permission to be examined at a later stage, would be improper."
In Bhanumathy v. M. Venkatesan,, it was held :
"In the instant case suit for partition and separate possession was filed by wife residing at Madras in Courts at Salem. As such was not in a position to go to Salem to attend hearing everytime she deputed her husband who used to contact her previous advocate and intimate her about stage of hearing. The husband was authorized to appear and he had attended the proceedings with her consent. On date when case was posted for arguments the Counsel made an endorsement that he is not claiming any right or share against respondents and his properties. Her husband was incharge of case right from beginning and gave evidence on her behalf and consented for making endorsement on plaint. On date of judgment the plaintiff/wife could not ask herself to be examined. In view of Order 18, Rule 3-A she having not exercised her right to be examined as a first witness in beginning of trial, and having not reserved her right by order of Court to examine herself later on, she could not ask for reopening of the case."
In Inderdeo Sah v. Dhramdeo Mahto, , it was held that when an application is filed by the plaintiff praying for permission to be examined as a witness later than his other witnesses on ground that on a previous date he was ill, such application should be allowed with liberty to defendants to recall witnesses of plaintiffs side for examination if they so desire.
8. This is a case where the impugned order is attacked by the Counsel representing Respondents 3 and 4 on the ground of non-recording of reasons. The learned Judge had recorded certain reasons while deciding the application and had observed that the appellate Court had directed to decide who is the absolute owner of the property i.e., whether the 1st defendant or the 2nd defendant. The order of remand referred to supra, if carefully gone through, would disclose that it is an open order of remand though a further direction was issued to decide as to who is the absolute owner of the property i.e., whether the 1st defendant or the 2nd defendant. That direction cannot be taken as restriction placed while making an order permitting the plaintiff to be examined as a witness. This is not a case where at the stage of trial of the original suit this application was moved. The plaintiff thought it fit to examine himself as a witness by virtue of an order of remand made by the appellate Court. Merely because incidentally a direction was given by the appellate Court to decide who is the absolute owner of the property i.e., whether the 1st defendant or the 2nd defendant, it cannot be taken that in all other respects the right of adduction of evidence through the plaintiff had been either restricted or prohibited by the order of remand. Evidently, in my considered opinion, this conditional order was made by the learned Senior Civil Judge construing the order of remand in a particular way. Letting in evidence is an important and essential facet of trial and while placing restrictions though permitting a particular party to be examined as a witness, Courts are expected to be more careful and cautious since putting such restrictions would amount to partly shutting out evidence or not permitting the party to let in evidence on certain material facts relating to which otherwise the party may be entitled to let in evidence. Hence in this view of the matter, though the learned Senior Civil Judge, Vizianagaram had exercised the discretion in a proper way in permitting the Revision petitioner/plaintiff to be examined as a witness in the light of the order of remand, definitely, the learned Senior Civil Judge, Vizianagaram had erred in putting a restriction permitting the plaintiff to be examined only to the limited extent pertaining to additional issue only. This is impermissible especially in the light of open order of remand referred to supra. Hence, imposition of such restriction, in my considered opinion, definitely cannot be sustained. In view of the same, the impugned order is modified permitting the petitioner/ plaintiff to be examined as a witness to speak about all the relevant facts relating to the suit without any restriction whatsoever pertaining to the additional issue or otherwise. Accordingly, the Revision petitioner is bound to succeed to the rest of the extent also since he was aggrieved of only a portion of the order made by the learned Senior Civil Judge, Vizianagarm.
9. Accordingly, the impugned order is modified as specified supra. The civil revision petition is allowed. No costs.