Shri Subhas Chandra Agarwalla vs Smt. Golabi Devi Agarwalla on 6 June, 1991

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64
Gauhati High Court
Shri Subhas Chandra Agarwalla vs Smt. Golabi Devi Agarwalla on 6 June, 1991
Equivalent citations: AIR 1992 Gau 20
Author: B Saraf
Bench: B Saraf


ORDER

B.P. Saraf, J.

1. The petitioner is aggrieved by an order dated 4-11-89 of the Assistant District Judge, Tinsukia allowing the plaintiff to be examined on commission after two witnesses on her behalf had already been examined. The contention of the petitioner is that under 0. 18, R. 3A of the Code of Civil Procedure (‘C.P.C.’), the court is required to record its reasons for permitting the plaintiff to appear as her own witness at a later stage, which has not been done in the instant case. The real grievance of the petitioner, therefore, relates to non-compliance of the requirements to Order 18, Rule 3A and not grant of permission for examination on commission.

2. I have heard Mr. G. P. Bhomik, learned Counsel for the petitioner. Heard also Mr. D. N. Barua, learned Counsel for the opposite party-plaintiff. Mr. Barua submits that Rule 3A of Order 18 is directory, and as such, the order allowing the plaintiff to be examined on commission shall not be vitiated on the grounds of non-recording of reasons therefor. The permission under Order 18, Rule 3A, according to the counsel, is implicit. Reliance is placed on the decisions reported in AIR 1978 Ori 228 (Maguni Dei v. Gouranga Sahu); AIR 1981 Cal 295 (Bholanath v. Kalipada); and AIR 1986 Pat 315 (Pravesh Kumari v. Rishi Prasad).

3. I have considered the rival submissions of the learned Counsel for the parties. I have also perused Rule 3A of Order 18, C.P.C. This rule was incorporated in the Civil Procedure Code by the 1976 amendment. It reads:

“3-A. 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.”

4. The object of insertion of Rule 3 A was to stop the practice of litigants giving evidence at the end so as to fill in any blanks or lacuna in the evidence of his witnesses. To achieve this object, it was provided in Rule 3A of Order 18 that where a party wishes to appear as a witness, he shall do so before any other witness on his behalf is examined. It, however, appears that while inserting this provision, the legislature was also conscious of the genuine hardships that might be caused to the litigants if this rule is universally applied without having any regard to the special facts and circumstances of each case. To obviate the same, power was vested in the court, for reasons to be recorded, to permit such party to appear as his own witness even at a later stage. The power of the court is discretionary but the discretion has to be exercised judiciously keeping in view the facts and circumstances of each case to advance the cause of justice. To put a check on mechanical exercise of the power, the requirement of recording reasons for the permission was incorporated in the statute itself. The power of the court is thus subject to fulfilment of this condition. This is a salutory requirement which cannot be ignored by the courts.

5. In the instant case, the admitted position is that no reason has been recorded. I have also perused the petition on the basis of which the impugned order had been passed. In the petition also, the only prayer was to allow the plaintiff to be examined on commission. It appears that both the plaintiff as well as the court were completely oblivious of the provisions of Rule 3 A of Order 18, C.P.C. The plaintiff did not pray for permission as contemplated by Rule 3A of Order 18 and the Court did not pass any order to that effect not to speak of giving reasons. The petition was for allowing the plaintiff to be examined on commission which was allowed. Mr. D. N. Barua, learned Counsel for the opposite party-plaintiff fairly conceded that in the petition before the court below the reasons were not stated by the plaintiff nor any such reasons find place in the order of the court. His submission, however, is that permission contemplated by Order 18, Rule 3A is implied in the order granting the prayer for allowing the plaintiff to be examined on commission.

6. I have carefully considered the submissions. I do not want to make any observation in regard to the merits as I am of the opinion that before allowing the plaintiff to be examined at a later stage, the court should have at least indicated in its order that it applied its judicial mind to the facts and circumstances of the case and decided to permit the plaintiff to be examined at a later stage. True, non-deliberation of the reasons or non-recording of the same may not vitiate the order if the requisite facts and circumstances indicating the application of the mind of the court in that respect are available on records. In the instant case I could not find anything on record. The grounds have been set out in the counter filed before this Court, which I am not inclined to consider for the first time in this revision. Under the circumstances, I am of the opinion that it was not proper on the part of the court below to pass an order in regard to examination of the plaintiff on commission without passing any order in regard to grant of permission to be examined at a later stage.

7. I have carefully considered the three decisions referred to by Mr. Barua. In Maguni Dei v. Gouranga Sahu, AIR 1978 Ori 228, Rule 3A of Order 18 was held to be directory in nature. It was also observed that 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. On the facts of the case the Court held that debarring the plaintiff not to be a witness for himself would cause hardship to him and in the interest of justice allowed the plaintiff to examine himself as his own witness at a later stage.

8. In Bholanath v. Kalipada, AIR 1981 Cal 295, it was held that as a general rule a party is to examine himself before examination of any other witness on his behalf. But this general rule can always be excepted by the Court by way of permitting the party, for reasons to be recorded, to appear at a later stage. No time limit has been imposed for seeking such permission. It is within the discretion of the Court to allow a party to appear as a witness at a later stage of the hearing for reasons to be recorded. The Court, however, observed that the provision of Order 18, Rule 3A lays down certain procedure but there is no penal provision for the non-compliance or non-observance.

Reference may also be made to the Division Bench decision of the Patna High Court in Pravesh Kumari v. Rishi Prasad, AIR 1986 Pat 315. The Court held that Rule3A was directory. The Court, as a note of caution, observed — “I should not be understood to mean that because Rule 3A of Order XVIII of the C.P.C. 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”.

9. From a consideration of all the three decisions mentioned above it is clear that Rule 3A was incorporated to achieve a particular object and the requirements thereof should be observed. It has been held to be directory only in the sense that its non-observance in all cases should not lead to the extreme penalty of expunging the evidence which has already been recorded. In the instant case no evidence has been recorded as yet. There is no order of the court in terms of the requirements of Order 18, Rule 3A. Without such an order the plaintiff was allowed to be examined on commission. It is difficult by implication to hold this order also as an order under Rule 3A of Order 18. It is not one of those exceptional cases where hardship will be caused to the plaintiff if the matter is remanded to the trial Court with the direction to comply with the requirements of Rule 3A or Order 18 and to pass appropriate order on consideration of the facts and circumstances of the case in regard to grant of permission to the plaintiff to examine herself at a later stage. I, therefore, direct the court below to consider this aspect of the matter and to pass necessary order in terms of Rule 3A of Order 18. The plaintiff shall be at liberty also to file fresh petition stating grounds and/or reasons for permission under Rule 3A of Order 18 and the Court shall consider the same uninfluenced by the fact of remand by this Court.

10. In the result, the revision petition is allowed to the extent indicated above. No costs.

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