Madras High Court
M.Kumar vs S. Subbiah Kone on 23 December, 2008
Author: S.Palanivelu
Bench: S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/12/2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.R.P. (PD) (MD) No.2142 of 2008 and C.R.P. (PD) (MD) No.2232 of 2008 and M.P. (MD) Nos. 1 & 2 of 2008 M.Kumar ... Petitioner in both CRPs Vs. 1. S. Subbiah Kone 2. Shiek Mohammad ... Respondents in both CRPs Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 05.09.2008 made in I.A.Nos.1210 & 1211 of 2007 in O.S.No.483 of 2006 on the file of the Principal District Munsif Court, Tirunelveli. !For Petitioner ... Mr.H.Arumugam ^For Respondent ... Mr.S.Meenakshisundaram * * * :COMMON ORDER
Since the facts and circumstances of the case are one the same, a common order is being passed.
1.1.The petitioner herein is the defendant in O.S.No.483 of 2006 on the file of the Principal District Munsif Court, Tirunelveli. The first respondent filed the suit for declaration and for mandatory injunction, in which the second respondent is the second defendant. The trial commenced before the Court. The first respondent was represented by his power of attorney by name Meena and she was examined as P.W.1 at the first instance and after her cross-examination, the first respondent filed proof affidavit for his chief examination, for which notice was given to the other side, namely, these petitioners who prayed for time to cross-examine the first respondent as PW2 without making any objections thereto. Thereafter, he filed two applications one, the present application in I.A.No.1210 of 2007 to reject the chief examination produced by the first respondent on the strength of the absence of getting permission by the first respondent under Order 18, Rule 3-A CPC and questioning the non-obtaining permission, he filed another application in I.A.No.1211 of 2007 and hence, the prayer may be accorded to.
CRP.No.2142 of 2008:
2. In the affidavit, the petitioner has stated that only after getting prior permission from the Court to examine any other witness prior to examining the party himself and since such permission was not obtained from the Court, the chief examination in the form of proof affidavit filed by the first respondent/plaintiff has to be rejected.
3. In the counter filed by the first respondent/plaintiff, it is stated that it is incorrect to state that prior permission has to be obtained by him prior to examining other witness, namely, the power of attorney. Hence, the petition is not sustainable.
CRP.No.2232 of 2008:
4. In the affidavit in I.A.No.1211 of 2007, challenging the permission granted by the Court to the first respondent / plaintiff to examine himself as P.W.2., it is alleged that since he was suffering from ailments at the time of filing of the suit, he appointed one Meena as his power of attorney to file the suit, who was examined as P.W.1 and her examination was over, presently for examining himself as P.W.2, necessary permission may be accorded and that the failure on the part of the plaintiff was not wanton and hence, the petition may be allowed.
5. In the counter filed by the present petitioner, he has alleged that as per the provisions of CPC, he should have filed application to examine witness before the party, namely, the plaintiff, was examined and in the absence of obtaining such permission, the petition is not maintainable and that in the affidavit the plaintiff has not adduced any reasons for not examining him at the earlier point of time. Hence, the petition has to be dismissed.
6. The second defendant also filed a counter with the allegations which are in line with that is in the counter of the first defendant, namely, this petitioner.
7. The learned Principal District Munsif, Tirunelveli, dismissed both the applications by observing that the plaintiff filed the suit through his power of attorney at the inception by alleging in the said deed that he was indisposed and hence, he was appointing the power of attorney to file the suit and that even though notice was given to the first defendant P.W.2 (this petitioner), there was no objection on his part, but it was endorsed on the proof affidavit for chief examination of P.W.2 and that he prayed time for examining of P.W.2.
8. In order to have thorough view of the matter, it is advantageous to extract Order 18, Rule 3 A CPC, which reads as follows:
"3A. Party to appear before other witnesses.- 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."
9. The gist of the provision goes to the effect that it is incumbent upon the the party to the case to get prior permission from the Court to examine himself at a later date after examination of any other witness and for granting such permission, the Court is statutorily required to record reasons.
10. The learned counsel for the petitioner Mr.H.Arumugam would strenuously contend that inasmuch as the first respondent has not satisfied the statutory requirement cast on him, that is to say, getting prior permission from the Court to examine him after the examination of P.W.1 namely, his power of attorney, he could not examine himself at a later stage, that the chief examination for P.W.2 has to be rejected, that even though this petitioner did not project any objection at the time of filing the proof affidavit for chief examination of P.W.2, he cannot be treated to have been estopped from contending in future, since there could be no estoppel against the statute.
11. It is quintessence of his contention that even if it is considered that estoppel would operate, against his claim, still as the plaintiff has not fulfilled the mandate of law, the estoppel does not become operative.
12. Repelling the contentions, the learned counsel for the respondent Mr.S.Meenakshisundaram would stress that the orders of the Court below does not suffer from infirmity for the reason that the petitioner is estopped from challenging the orders passed by filing both applications before the Court below and he has estopped from doing so and that as per the settled principles, the first respondent is entitled to obtain permission from the Court even at a later stage.
13. In support of his contention, reliance was placed upon by the learned counsel for the petitioner to a decision of this Court reported in AIR 1990 Madras 237, Ayyasami Gounder and others V. T.S.Palanisamy Gounder, in which it is held that the reasons required to be recorded in writing and if the Court is satisfied with reference to the reasons given by the party as to why he should be permitted to appear as a witness at a later stage, then, the permission can be granted by the Court, subject to recording of reasons in this regard.
14. In AIR 1995 Madras 137, Dr.V.K.Muthusamy V. U.A.Habeen Firm by Partner U.A. Habeeb and others also, identical view has been taken by this Court on the strength of an earlier decision of this Court and the operative portion of the judgment containing the extraction of that decision is as follows:
"Dealing with the scope of Order 18, Rule 3A in V.Jayakannan and three others v. V.K.Sampath Alias V.K.Sampathkumar, 1987 TNLJ 340, Chandurkar Chief Justice has observed as follows:-
"Therefore, a party examining itself before other witnesses are examined is the rule. A party examining itself after the other witnesses are examined is an exception. An exception can be made only for valid reasons. What those valid reasons are will depend on the facts and circumstances of each case. ......................
"The obvious purpose of the rule is to do away with the practice which had grown in Indian Courts of examining all other witnesses first and then the party entering the witness box to fill up all the lacunae which might have been left or to undo the damage which might have been caused by certain admissions which might have been made by the other witnesses. It adversely affects the opposite party. It is a normal rule of appreciation of evidence that the substantive evidence in each case is of the party itself and the other witness are most of the time treated as witnesses corroborating the substantive evidence. It was this rule of appreciation of evidence which has not been incorporated in the mandatory provision by the enactment of Order 18, Rule 3A of the Code of Civil Procedure."
15. It is also observed in the above said decision in Dr.V.K.Muthuswamy's case supra, the learned Judge also opined his opinion as follows:
"What is relevant under Order 18, Rule 3A of the Code is that the court should be satisfied that the party who should appear as a witness on his behalf before the other witnesses in support of his case are examined, is unable to appear and give evidence in support of his case. The reasons required to be recorded relate to this and if the Court is satisfied with reference to the reasons given by the party as to why he should be permitted to appear as a witness at a later stage, then the permission can be granted by the Court subject to the recording of reasons in that record."
16. In AIR 2003 Andhra Pradesh 329, Secretary to Government of India, Ministry of Defence, New Delhi and another V. Indira Devi and others, a Division Bench of Andhra Pradesh High Court has held that once a person files a suit on behalf of the party, as a General Power of Attorney holder, he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts. Drawing attention of this Court to the facts of the present case, the learned counsel for the petitioner would submit that since P.W.1 entered into the shoes of the plaintiff, whatever may be the evidence, to be adduced by the P.W.2, shall certainly be on the basis of the records and that no evidence could be required to reveal his personal knowledge as to any of the facts.
17. The learned counsel for the respondent would garner support from a decision of Division Bench of this Court reported in 2008 (1) CTC 36, Ravi and another V. Ramar, in which the learned Judges have elaborately dealt with the subject in the light of the decisions of this Court and of the Supreme Court and concluded as follows:
"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 full-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 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."
18. As per the Division Bench of this Court, the permission could be granted even at a later stage by the Court, provided genuine reasons should have been adduced in the affidavit for seeking the relief under Order 18, Rule 3A CPC and the duty is cast on the Court to record its reasons. It must be specifically averred in the affidavit that for what reason, he could not examine himself before the witness was examined and the Court should get satisfied with the reasons and the said satisfaction should be revealed in writing.
19. In 2008 (4) CTC 490, Chennimalai V. Alagulakshmi, this Court has followed the above said Division Bench decision and also held that even though no petition has been filed to examine the party at a later stage that the evidence was already recorded, the party is at liberty to file an appropriate application.
20. In 2008-3-L.W. 534, M.Pa.Basheer Agameth and 3 others V. Kathija Beevi and 13 others, this Court has taken up discussion on the facts which are akin to those prevailing in this case. In the said decision, the learned Judge has observed as follows:
"The second defendant had been examined as PW.1 and his evidence was adduced by filing proof affidavit and proof affidavit has been received by the Court. Prior to the filing of proof affidavit and receipt of the same, the Revision Petitioners do not appear to have raised any objection. While so, it is not open to the Revision Petitioners to seek for striking of evidence of PW.1 when he was about to be cross examined."
21. Even though the facts are quite similar, the affidavit of the first respondent did not disclose any reasons upon which the Court is called upon to record its reasons to accord permission, as per the consistent view taken by this Court in its decisions which have been referred to supra.
22. Distinguishing the above said decision, the learned counsel for the petitioner would submit that if any estoppel is to operate against the petitioner, that could not be dispelled by statutory requirements. In order to vouchsafe his argument, he placed reliance upon a decision of the Hon'ble Supreme Court in AIR 2002 Supreme Court 2171, A.V.G.P.Chettiar and Sons and other V. T.Palanisamy Gounder, in which Their Lordships have held as follows:
"Mere giving of undertaking by the tenant to vacate the premises for obtaining stay to execution of eviction decree, does not foreclose a tenant from availing of any statutory remedies available to him by way of appeal or revision or under the Constitution. In the instant case the tenants had no doubt requested for a stay of the execution of the decree. That had been granted by the High Court subject to furnishing of an undertaking by the tenant to vacate the premises within a period of six months. But the tenants did not in fact give any such undertaking. Even if they had, they could not be denied the right to appeal to the Court on any principle of estoppel unless the landlord could show that the tenants had thereby gained an advantage which otherwise was not available to them. As no undertaking was in fact given by the tenants, the question of deriving any advantage by the tenant on the basis of such undertaking therefore did not arise at all.
23. Taking the analogy from the above said decision of the Apex Court, it has to be held that there cannot be any estoppel against a statute. Their Lordships have cautioned that the rights of the parties could not be denied on future occasion, unless the other party shows that the party had taken already a stand, thereby he gained an advantage which otherwise was not available to the persons questioning it.
24. In view of the said principles laid down by the Hon'ble Supreme Court, I am of the considered view that there shall be no estoppel against the statute. In other words, while the statute casts a duty upon a party to perform, then, he cannot take recourse to the stand taken by the other side.
25. Adverting to the allegations contained in the affidavit filed by the first respondent, it is bereft of the reasons as to the necessity of the first respondent to examine the power of attorney before he was examined. The only reason available thereon is that in order to comply with the legal requirements, the petition is being filed. But the trial Court has observed in its order that since the plaintiff was ill, he had authorised his power of attorney to file the suit and that might be considered as a reason for filing this application. The said observation is not at all sustainable for the reason that at the time of trial what has prevented the plaintiff from examining himself at the first instance, has to be specifically pleaded him and the same has to convince the Court also. The law requires the Court to record its reasons for permitting the party to examine himself at a later stage. Any deviation in this regard shall render the permission granted by the Court, an invalid one and the said order would get vitiated in view of the absence of recording proper reasons by the Court.
26. In such view of this matter, this Court sees considerable force in the contention placed on behalf of the petitioner and the permission granted by the Court below does not stand for a minute's scrutiny. Resultantly, the orders passed by the Court below suffer from infirmity and they deserve to be set aside, which are accordingly set aside.
27. In fine, both the Civil Revision Petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
srm/ssm To The Principal District Munsif Court, Tirunelveli.