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2006 DIGILAW 705 (AP)

V. Devi Ravindra Prasad v. V. Rukmini Bayamma

2006-06-22

G.ROHINI

body2006
O R D E R This Revision Petition is directed against the order dated 9-8-2005 in I.A.No.405 of 2005 in O.S.No.127 of 1999 on the file of the Court of VII-Addl. District Judge (FTC), Visakhapatnam. 2. The Revision petitioner is the plaintiff, who filed the suit for declaration of title to the plaint schedule properties. The defendants /respondents herein filed a written statement contesting the suit claim and also making a counter-claim for partition of the suit schedule properties among the plaintiff and the defendants 1 and 2. After the issues were settled and the evidence on behalf of the plaintiffs was let in, the 1st defendant examined herself as D.W.1. While the matter was coming up for further evidence on behalf of the defendants, the defendants filed I.A.No.405 of 2005 under Order 18 Rule 3A of C.P.C. seeking permission to examine the husband of the 2nd defendant in the first instance without examining the 2nd defendant. The said application was allowed by the Court below subject to the condition that if the defendants wish to examine the 2nd defendant as a witness at a later stage, she must be examined only with reference to such of the facts that may be elicited from the proposed witness and not touching the interest of the 2nd defendant in the suit properties. The said order dated 9-8-2005 is under challenge in this Revision Petition by the plaintiff. 3. I have heard the learned Counsel for both the parties and perused the material on record. 4. At the outset, Order 18 Rule 3-A of C.P.C., which runs as under, may be noted : “3A. Party to appear before other witnesses Where as 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.” 5. On a plain reading of the above provision, it is clear that it is mandatory for a party to the suit who wishes to examine himself as a witness to do so before any other witness on his behalf has been examined. However, the provision itself enables the party to examine himself at a later stage with the permission of the Court. While granting such permission, the Court has to record reasons therefor. However, the provision itself enables the party to examine himself at a later stage with the permission of the Court. While granting such permission, the Court has to record reasons therefor. In other words, the permission to a party to examine himself at a later stage can be granted by the Court only after being satisfied that the party did not withhold himself deliberately or purposefully from the witness box and that the examination of the party himself at a later stage would not result in plugging the gaps in evidence of other witnesses on his behalf. As observed by a Division Bench of this Court in D. PATTABHI RAMAIAH vs. D. LAKSHMI PRASANNA(1), Rule 3A was introduced by Act 104 of 1976 into the Code of Civil Procedure only with an intention to prevent the notorious practice indulged in by litigants in examining other witnesses first and later covering up the gaps by the examination of parties themselves to substantiate their case. 6. In the case on hand, the 2nd defendant is the daughter of the 1st defendant. In the affidavit filed in support of the application, while seeking permission to examine the 2nd defendant at a later stage, it was pleaded as under by the 2nd defendant : “The evidence of D. W.1 my mother 1st defendant covers my interest also. There are no suggestions made to D. W. 1 by my brother Devi Ravindra Prasad warranting myself being examined as a witness in this suit at this juncture. But, in view of the suggestions made to my mother D. W.1 there is a necessity to examine my husband Doctor Uma Maheswara Rao Garu immediately after my mother’s evidence as D. W.2. Without foregoing my right to give evidence in the above suit if it is felt necessary at a later stage, we the defendants may be permitted to examine my husband Doctor Uma Maheswara Rao Garu as D. W.2 in the above suit, for which we are seeking permission of this Hon’ble Court. It is therefore necessary in the interest of justice and fair play that the Hon’ble Court may be pleased to permit the defendants/petitioners to examine Doctor Uma Maheswara Rao, husband of 2nd defendant Mallikamba as D. W.2 in the first instance without examining D2 at this juncture, as otherwise we the defendant petitioners will suffer irreparable loss and damage.” 7. It is therefore necessary in the interest of justice and fair play that the Hon’ble Court may be pleased to permit the defendants/petitioners to examine Doctor Uma Maheswara Rao, husband of 2nd defendant Mallikamba as D. W.2 in the first instance without examining D2 at this juncture, as otherwise we the defendant petitioners will suffer irreparable loss and damage.” 7. From the above averments, it is clear that the defendants have not made it clear whether the 2nd defendant would be examined at a later stage or not. On the other hand, it was stated that the 2nd defendant was reserving her right to give her evidence if it felt necessary at a later stage. 8. The language of Rule 3A extracted above shows that the permission of the Court is required only where the party wants to appear as his own witness at a later stage. In case the party does not want to appear as his own witness, it is always open to him to examine any other witness on his behalf. Hence, the 2nd defendant can seek permission of the Court under Rule 3A only if she wishes to appear as her own witness at a later stage and it is necessary for her to say so precisely in her petition. In the absence of the same, the application under Rule 3A of Order 18 of C.P.C. itself is not maintainable. The Court below though noted the scope of Rule 3A, strangely held that the permission can be granted to the 2nd defendant with certain restrictions in exercise of inherent powers under Section 151 of C.P.C. and accordingly allowed the petition as under : “In the result, the petition is allowed and the defendants are permitted to examine the husband of the 2nd defendant at the first instance without examining the 2nd defendant herself on the condition that if the defendants wish to examine the 2nd defendant also as a witness at a later stage, she must be examined only with reference to such of the facts that may be elicited from her husband the proposed witness and not touching the interest of the 2nd defendant in the suit properties which interest were already said to have been covered by D. W. 1.” 9. The said order is not only contrary to the scope and object of Rule 3A of Order 18 of C.P.C., but it is also practically unworkable. That apart, the law is well settled that when there is a specific provision in the Code of Civil Procedure covering a particular situation, the Court cannot invoke the inherent powers under Section 151 of C.P.C. Hence, the Court below committed a grave error in allowing the application purportedly in exercise of Section 151 of C.P.C. 10. For the aforesaid reasons, the order under Revision is hereby set aside and I.A.No.405 of 2005 shall stand dismissed. However, keeping in view the facts and circumstances, liberty is granted to the 2nd defendant to make a fresh application in terms of order 18 Rule 3A of C.P.C. if she chooses to come into witness-box at a later stage. 11. The Civil Revision Petition is accordingly allowed. No costs. --X—