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2003 DIGILAW 701 (MP)

Vidyaram v. Central Bank of India

2003-05-09

RAJENDRA MENON

body2003
JUDGMENT Invoking the writ jurisdiction of this Court under Article 227 of the Constitution, petitioner has called in question the order dated 4.3.2003 (Annexure P/6) by which the right of the petitioner plaintiff to examine himself as a witness has been closed and his application for permission under Order 18 Rule 3A CPC, has been rejected. The facts as they emerge from the record are that on 20.12.2002, the case was fixed for evidence. The plaintiff filed affidavit of his witness, one Jay Prakash Verma, a hand-writing expert and the affidavit of the plaintiff-petitioner was also filed. According to the petitioner, a copy of this affidavit was supplied to counsel for the respondents. As Shri Jay Prakash Verma had corne from outside, as a matter of convenience his cross-examination was recorded first. Immediately, thereafter, the petitioner has filed his affidavit. The counsel for respondents objected and submitted that as prior permission as required under Order 18 Rule 3A CPC, has not been obtained, the petitioner cannot be permitted to lead evidence. By the impugned order, the objections of the respondents have been sustained and the application filed by the petitioner under Order is Rule 3A CPC, has been rejected. I have heard learned counsel for the petitioner and perused the record. The only reason given by the Court below for rejecting the prayer of the petitioner to grant him permission is that on 20.12.2002, he did not file the affidavit before the examination of Shri Jay Prakash Verma. A learned Single Judge of this Court in the case of Saplzi Mohammad v. Ram Jiymvall. 2001 (1) MPWN SN 79 has considered the provisions of Order 18 Rule 3A CPC. After considering the same, it has been recorded by the learned Single Judge that the aforesaid provision casts a duty on the Court for recording reasons for permitting a party to appear as its own witness at a later stage. That was a case where without recording any reason permission was granted to the defendant to examine himself after examination of his other witnesses were closed. Considering the aforesaid provision in the backdrop, this Court has observed in the aforesaid case that allowing a party as a witness after examination of his own witness is within the discretion of the Court and with leave of the Coul1, a party can always appear at a later stage. Considering the aforesaid provision in the backdrop, this Court has observed in the aforesaid case that allowing a party as a witness after examination of his own witness is within the discretion of the Court and with leave of the Coul1, a party can always appear at a later stage. Considering the case in hand, the petitioner ought to have moved the application under Order 18 Rule 3A CPC, before examination of his hand-writing expert. But the fact remains that immediately thereafter his affidavit was presented and according to the petitioner a copy of the affidavit was supplied to the learned counsel for the defendant. In view of the above, action of the Court below in closing the evidence of the petitioner is not in accordance with the spirit of Order 18 Rule 3ACPC., The discretion has been exercised on the ground that the affidavit was not presented before the start of recording the statement of the witness. On due consideration, I am of the considered view that if the right of the petitioner to adduce evidence is closed, the same will amount to grave injustice to him. In that view of the matter, I am of the considered view that the Court below should be directed to give one more opportunity to the petitioner to examine himself. Accordingly, the petition is allowed and the Court below is directed to afford an opportunity to the petitioner to examine himself before examining other witnesses in the matter. Accordingly, petition and MWP No. 428103, stand disposed of.