Kerala High Court
N.C. Kaladharan vs Kamaleswaran And Ors. on 22 March, 2000
Equivalent citations: AIR2000KER354, AIR 2000 KERALA 354, (2000) ILR(KER) 2 KER 657, (2000) 2 KER LT 363, (2001) 1 ICC 748, (2001) 1 CIVILCOURTC 103
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
ORDER M.R. Hariharan Nair, J.
1. Can the propounder of a will who is a defendant, Insist that he should be examined as a party only after his witnesses including the Sub Registrar and the Attestors are examined ? This is the question that arises for decision in this revision.
2. In a suit for partition the revision petitioner, who is the 5th defendant raised a contention that one of the items in the plaint schedule is not partible for the reason that it is covered by a will executed by the mother of the parties in the year 1982. Pursuant to the replication denying the validity of the will the Court decided that the defendants should open the evidence in the case. The 1st defendant then filed I.A. No. 330/95 praying that the District Registrar, Trivandrum be directed to produce before the Court the original will dated 30-8-1982 along with the envelope concerned and all other connected records. That was disallowed stating that the 1st defendant and his counsel could peruse the documents in the presence of the District Registrar, Trivandrum get attested copies thereof for production and that the production of original could be considered at the trial stage. He subsequently filed I.A. No. 5830/98 praying that he might be allowed to adduce counter evidence regarding the will after completing the evidence of the 5th defendant. The Court ordered on the petition "Kept in abeyance for decision after the evidence of the plaintiff". It was, thereafter, that the petitioner filed I.A. No. 4860/99 praying that he be allowed to examine the District Registrar, Scribe and the Attestors of the will at the 1st Instance and that his own examination be postponed until the said witnesses are examined.
3. It was argued before the trial Court that only when the will is proved there is scope for adducing evidence of the parties. The Court however, did not find merit in the contention. It was observed that the proof of the will has nothing to do with examination of the party and that the burden of proof in the case is on the propounder and that he has to open the case. The petition, it was observed, was filed with ulterior motives. The petition was hence dismissed.
4. I have heard both sides.
5. Order 18 Rule 3(A) of the Code of Civil Procedure provides as follows :--
"party to appear before 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."
A plain reading of the section makes it clear that if the party himself wishes to appear as a witness he has to do so before any other witness on his behalf is examined. This is, however, subject to the power of the Court, for reasons to be recorded, to permit him to appear as witness at a later stage. A discretion is certainly available with the Court to allow the request to postpone the evidence of the party until his witnesses are examined; but this is subject to the availability of sufficient reasons for doing so which have to be recorded. The permission cannot be granted for the mere asking or as a matter of course and the Court has to justify its action by giving sufficient reasons. Then the question is whether the need for formal proof of a will can be a sufficient ground for postponing examination of witnesses.
6. The discretion available with the Court in the matter is not unbridled. It is a judicial discretion. Valid and compelling reasons must be made out for postponing the examination of parties until the witnesses are examined. What exactly prevents the party from going to the box first is a matter to be established by him and only when there is justifiable inability on the part of the party to get himself examined first, the question of postponing his examination will arise.
7. One of the material questions that the Court has to address in the matter is whether postponement of the examination is sought with ulterior motives and whether it would result in filling up the lacunae that might be left out in the evidence of the witnesses. Whether he is wantonly avoiding the box is also a question that has to be answered. Unless compelling circumstance exists the permission for postponing such examination cannot be granted. This is so because Order 18 Rule 3(A) of the C.P.C. aforementioned was Introduced through an amendment in 1976 based on a report of the Law Commission stating that the normal and healthy practice to be followed by the trial Court is to call upon the parties to the suit before their witnesses are examined. Resort to a contrary practice would lead to undesirable practices bordering on dishonesty and that is why Rule 3A of the C.P.C. was introduced through amendment making it obligatory on the part of the trial Court to lay down reasons for deviating from the normal practice.
8. The above conclusions find considerable support from a decision of this Court in Sadasivan v. Dinakaran (1988) l Ker 20 also. It was found therein that though the Court has the discretion to allow a party to appear as a witness at a later stage, the imperative mandate is that a party shall always be examined before his witnesses are examined. This is subject to the discretion of the Court in appropriate cases to reverse the order.
9. In the Instant case, the petitioner has no case that he is prevented by any sufficient cause from going to the Box to open case. His contention is only that under Sections 67 and 68 of the Evidence Act the will of which he has to speak about requires formal evidence and that only when the will is properly proved, he can lead evidence. If he is examined first, it would not be possible for him or for the Court to use the will as evidence in the course of his examination and that Is the reason projected for justifying his request for examination. I do not find any merit in the said contention. Even though the will can be proved only through formal evidence as required by Sections 67 and 68 there is nothing which prevents the petitioner from speaking about the will and in referring to the contents of the will. A will can always be marked subject to formal proof. It cannot be said that unless and until the will is proved the party will not be able to refer to the contents thereof in his evidence, of course, the will has to be made available in Court and this can be done by issuing summons to the District Registrar to produce it before the Court. There will not be a bar for issuing such summons in the first instance. 10. The reasons given by the petitioner for reversing the normal order of examining parties and witnesses are not convincing or sufficient for the purpose of Order 18, Rule 3(A) of the C.P.C.
The revision is hence without merit and it is accordingly dismissed.