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1987 DIGILAW 592 (KER)

SADASIVAN v. DINAKARAN

1987-11-19

PAREED PILLAY

body1987
Judgment :- 1. This is a petition to allow the petitioner to give evidence in the Court. It is the case of the petitioner that on account of illness he could not be examined in the election petition on 23-9-1987. He has produced a medical certificate to show that the doctor bad advised him to take complete rest during the period 20-9-1987 to 25-9-1987. In the affidavit it is stated that as his witnesses including the District Collector, Alleppey, appeared before the Court on summons his Advocate did not want to cause any inconvenience to the Court and the witnesses coming from distant places by seeking adjournment. It is averred that he could not appear in the Court on 23-9-1987 not due to any laches or negligence on his part. Petitioner asserts that for effective determination of the election petition he has necessarily to testify. 2. Respondent filed counter statement opposing the petition. The allegation that the petitioner was laid up en 23-9-1987 is denied. It is also pointed out that the respondent's counsel raised specific objection in the open Court that the petitioner should be examined as the first witness and if not be should not be allowed to be examined at a later stage. It is also contended that the petitioner's witnesses were examined on various subsequent dates viz. 12-10-1987,13-10-1987,10-11-1987 and 11-11-1987 and on none of these occasions any effort was made to examine the petitioner. 3. S.86 of the Representation of the People Act, 1951 has made C.P.C. applicable to election petitions. 0.18 R.3 A of the C.P.C. reads: "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." R.3A was inserted by the C.P.C. Amendment Act 104 of 1976. The Lew Commission found it necessary to incorporate R.3 A in view of the wide spread practice of the parties in the litigations being examined at the fag end. By examining the parties at the fag end they are able to plug holes in the evidence of their witnesses. Aa it was found to be not a fair practice and not conducive to fair and proper trial the necessity to include R.3 A in the C.P.C. was very much felt. By examining the parties at the fag end they are able to plug holes in the evidence of their witnesses. Aa it was found to be not a fair practice and not conducive to fair and proper trial the necessity to include R.3 A in the C.P.C. was very much felt. R.3A clearly states that a party who wants to give evidence should do so before any other witness on his behalf has been examined. Of course, it gives discretion to the Court for reasons to be recorded to permit a party to be exercised at a later stage. In certain situations it may become necessary to examine a party after the examination of his witnesses. There may develop particular situations or circumstances whereby a party could not be examined before his witnesses were examined. In such situations it is always open to the Court to permit a party to be examined at a later stage. R.3A makes the position very clear that as a general rule the party is to examine himself before his witnesses are examined before the Court. Of course if is always within the discretion of the Court to allow a party to appear as a witness at a later stage, for reasons to be recorded by it. The imperative mandate that a party shall always be examined before any other witness of his has been examined is subject to the discretion of the Court in appropriate cases to allow hisexamination subsequently. 4. Whether a party who did cot seek permission of the Court at the first instance to examine him after his witnesses have been examined could seek it later requires consideration. The C.P.C. does not prescribe any time limit for seeking such permission. It is always 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. In Bholanath v. Kallpada (AIR 1981 Calcutta 295) it has been held that the Court has the discretion to allow a party to appear as a witness at a later stage of the hearing for reasons to be recorded. In Bholanath v. Kallpada (AIR 1981 Calcutta 295) it has been held that the Court has the discretion to allow a party to appear as a witness at a later stage of the hearing for reasons to be recorded. In Kwality Restaurant v. Satinder Khanna (AIR 1979 Punjab & Haryana 72) it is held as fellows: "The intention of the legislature is that the normal rule prescribed by the legislature is that a party appearing as bis 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." It is always better for the party concerned to get the necessary permission of the Court at the stage of commencing his evidence as a matter of abundant caution. But if sufficient grounds is made out the party may secure such permission even at a later stage. In Marappa Gounder v. Sellappa Gounder (AIR 1985 Madras 183) it is held as fellows: "A duty is cast on the court by R.3 A to record reasons, which means that valid f 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, be should seek prior permission before other witnesses are examined. In its absence, it can be sought later on at the time when party is put in the witness box, if by mischance any of bis witnesses have been already examined, without securing earlier permission." The Court has the ultimate discretion in allowing the request of the party to be examined at a later stage. The prime consideration should be whether valid and compulsive grounds exist for allowing the request. 5. It is the definite case of the petitioner that he could not appear before the Court on 23-9-1987 and his counsel considered it better net to seek adjournment of the case but to proceed with the trial as the witnesses came to the Court on summons. It is true that the counsel for the respondent objected to the examination of the witnesses before examining the petitioner. But the position remains that the petitioner could not appear before the Court due to illness. It is true that the counsel for the respondent objected to the examination of the witnesses before examining the petitioner. But the position remains that the petitioner could not appear before the Court due to illness. It is also important to note that witnesses were examined to prove certain allegations in the election petition. It is not possible to hold that by examining the petitioner it would be possible to fill up the lacunae in their evidence. 6. Considering all aspects of the matter I find that in the interest of justice opportunity should not be denied to the petitioner in giving evidence before the Court. It is only fair and proper that the petitioner it allowed to be examined in the election petition. The petition stands allowed. Allowed.