Punjab-Haryana High Court
Jagdish Mehtani vs Usha Rani on 14 January, 2016
Author: Rekha Mittal
Bench: Rekha Mittal
CR-172-2016 1
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
CR-172-2016
Date of decision : 14.01.2016
Jagdish Mehtani
... Petitioner
Versus
Smt.Usha Rani
... Respondent
CORAM: HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr. Ajit Sihag, Advocate
for the petitioner.
REKHA MITTAL. J.
The present petition has been directed against the order dated 28.10.2015 passed by the Civil Judge (Senior Division), Hisar whereby the application filed by the petitioner under Order 18 Rule 3A read with Section 151 of the Code of Civil Procedure (for brevity 'CPC') has been dismissed.
Smt. Usha Rani (respondent) filed a suit for recovery of `7,25,520/- towards arrears of rent. She examined her witnesses and thereafter wanted to examine herself through her Special Attorney and tendered into evidence affidavit of attorney by way of examination-in- chief.
The petitioner-defendant filed the instant application on the premise that at the time of start of evidence of the respondent, she did not DAVINDER KUMAR 2016.02.09 09:20 I attest to the accuracy and integrity of this document CR-172-2016 2 seek any permission of the Court to examine herself after examination of other witnesses in compliance with the provisions of Rule 3A of Order 18 CPC, therefore, she is debarred from appearing as a witness either personally or through an attorney. It is further argued that the learned trial Court failed to appreciate the provisions of the aforesaid rule in right perspective and thus, committed a serious error in holding that the respondent is entitled to examine her attorney even after adducing other evidence. In support of his contention, he has referred to the judgment of this Court Jasvir Singh and another Vs. Jaspal Singh, Vol.CLXXIX (2015-3) The Punjab Law Reporter 130.
I have heard counsel for the petitioner and perused the records.
The learned trial Court disposed of the application after taking into consideration the judgment in Jasvir Singh and another's case (supra) referred to by counsel for the petitioner and the judgments Gurmail Chand Vs. Ashok Verma, 2004(2) CCC, 716 and Mahabir Jain Kanya Pathshala Trust Bhiwani and another Vs. Daya Krishan and others, 2010(3) CCC, 385.
Rule 3A of Order 18, relevant in the present context, 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, DAVINDER KUMAR 2016.02.09 09:20 I attest to the accuracy and integrity of this document CR-172-2016 3 permits him to appear as hiss own witness at a later stage."
Counsel for the petitioner is not in a position to controvert that in Mahabir Jain Kanya Pathshala Trust Bhiwani and another's case (supra), it has been held that the provisions of Order 18 Rule 3A CPC are not mandatory but are directory and the petitioner can seek permission of the Court even at a stage subsequent to the examination of some of his witnesses to appear as his own witness at a later stage. In Jasvir Singh and another's case (supra) heavily relied upon by the petitioner, it was held, quoted below :-
"Although under Order 18 Rule 3A of the Code requires the parties to be examined first before calling the witnesses, it is simply a practice that is not followed in many of the subordinate courts in Punjab and Haryana. The provision requiring the parties to be examined first was inserted by Act 104 of 1976 for a salutary purpose of bring the assertion of the respective parties first before other witnesses could be brought and to ensure that a party does not cover up every lacuna in evidence of what are brought through witnesses in cross- examination. It is time that discipline at the trial and the statutory provision regarding Rule 3A of the Code is strictly followed. Even if prior permission is not taken before the commencement of trial, it shall be sought at least at the time before the party is examined. Even this is not being done in our courts. The parties assume that a witness can be examined in any order and the parties DAVINDER KUMAR can also bring their own versions at any time they wish.2016.02.09 09:20 I attest to the accuracy and integrity of this document CR-172-2016 4
Any breach of this rule will be viewed seriously and may result in eschewing the evidence of the parties, if no permission is taken under Order 18 Rule 3A of the Code to examine the party after examination of witnesses. I would issue this directive to apply in all future cases, so that it does not cause any serious dislocation and the parties and more particularly, the Bar which aids and advises the litigants is sensitive to the statutory provision under Order 18 Rule 3A of the Code and the consequences of not complying with the mandate. If, in future, any party does not offer his or her evidence first and brings third party witnesses first and later offers to tender evidence without taking prior permission, the opposite party may oppose such evidence before the party's evidence is tendered. The trial court shall not permit evidence to be given unless, it sets out reason in writing why such permission is being given. In Gurmail Chand Vs. Ashok Verma 2004 (3) RCR (Civil) 164, this court had held that if witnesses other than party was examined and party is examined later, no objection could be taken. In my respectful view, it will amount to putting the cart before the horse. Objections could be rightfully taken only when the party shows up to tender evidence and not when third party witness is given."
The Court has taken note of the fact that provisions of Order 18 Rule 3A CPC are not being followed in many of the subordinate courts in Punjab and Haryana and the need of hour is that discipline at the trial and the statutory provisions regarding Rule 3A of the Code is strictly followed. However, it has been held that if in future any party does not DAVINDER KUMAR 2016.02.09 09:20 I attest to the accuracy and integrity of this document CR-172-2016 5 offer his/her evidence first and brings third party witnesses first and later offers to tender evidence without taking prior permission, the opposite party may oppose such evidence before the party's evidence is tendered.
In the case at hand, admittedly, the evidence of the respondent started prior to the judgment in Jasvir Singh and another's case (supra) which came to be decided on 30.03.2015. As the respondent had started third party evidence at a time before the judgment in Jasvir Singh and another's case (supra) was rendered by this Court, the petitioner cannot seek any aid to his contention from the observations made in the said authority as it would be applicable to the cases wherein the evidence of a party is yet to start after the judgment passed by this Court is circulated to the Judicial Officers as well as the members of the bar so that the parties are well aware that either they have to tender themselves for evidence before examining any witness or they have to seek prior permission of the Court in this regard. With due deference, the Court in Jasvir Singh and another's case (supra) has not discussed the judgment in Mahabir Jain Kanya Pathshala Trust Bhiwani and another's case (supra), wherein it was held that the provisions of Order 18 Rule 3A CPC are not mandatory but are merely directory. In this view of the matter, the respondent cannot be denied the rights to examine herself either personally or through her attorney after examination of witnesses, by relying upon the judgment in Jasvir Singh and another's case (supra).
DAVINDER KUMAR2016.02.09 09:20 I attest to the accuracy and integrity of this document CR-172-2016 6
In view of what has been discussed hereinabove, I do not find any error much less illegality in the impugned order as would call for intervention.
Dismissed.
(REKHA MITTAL) JUDGE January 14, 2016.
Davinder Kumar DAVINDER KUMAR 2016.02.09 09:20 I attest to the accuracy and integrity of this document