Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 764 (MAD)

M. Pa. Basheer Agameth v. Kathija Beevi

2008-03-01

R.BANUMATHI

body2008
Judgment :- This revision is directed against the order dismissing the petition I.A.No.493 of 2006 in O.S.No.33 of 2004 and declining to reject the evidence of PW.1. 2. Respondent/Plaintiff has filed the suit O.S.No.33 of 2004 for partition and separate possession. According to Plaintiff, suit property belonged to her mother Peer Fathumal Beevi and she died in 1979. Respondent/Plaintiff claims to be in joint possession and enjoyment of the suit property. Plaintiff has filed the suit for partition claiming 1/12th share in the suit properties. 3. Defendants 1 to 4 and 9 to 12, 5th defendant and defendants 16 and 17, defendants 13 to 15 and defendants 5 to 8 have filed separate written statements denying plaintiffs averments and the share claimed by the plaintiff. 4. Trial commenced. In the trial, Respondent/ Plaintiff has examined second defendant as a witness - as PW.1 on the side of plaintiff. Proof affidavit was filed and certain exhibits were also marked. At the stage when PW.1 was to be cross examined, Defendants 5 to 8 have filed the petition under Section 151 CPC praying to strike off evidence of PW.1. Defendants 5 to 8 have raised objection stating that the second defendant along with his brothers had already filed O.S.No.3/83 for partition and other reliefs and in the said suit, second defendant and others have alleged that the property was purchased in the name of Peer Fathumal Beevi from out of the income of partnership business. 5. The learned Principal Sub-Ordinate Judge has dismissed the petition by the impugned order. 6. Challenging the impugned order, the learned counsel for Revision Petitioners/Defendants 5 to 8 contended that if the plaintiff wants to examine one of the defendants as a witness, she has to establish requirements for the examination of that defendant as plaintiffs witness. The learned counsel would further submit that plaintiff had not obtained permission to examine herself at the later stage of the suit under O.18 Rule 3A and the Court below ought not to have allowed the second defendant to depose evidence as PW.1. 7. As per O.18 Rule 3A CPC, where a party 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. 7. As per O.18 Rule 3A CPC, where a party 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 combined reading of the entire Rule 3A gives an impression that a party who wishes to examine himself/herself as one of the witnesses in support of his/her case, has to appear first as a witness before any other witness is examined on his/her behalf. The provision further empowers the Court to permit a party to examine himself/herself at a later stage also while recording reasons. A reading of O.18 Rule 3A would make it clear that a party who wishes to examine himself/herself at a later stage, need not seek permission of the Court at the threshold itself. 8. The provision under O.18 Rule 3A is directory and not mandatory. Referring to various decisions on O.18 Rule 3A in Ravi and another v. Ramar ( 2008(1) CTC 36 : 2008-1 L.W.1055), the Division Bench of this Court has held as under: "18. A perusal of the decisions of different High Courts indicate that the provision contained in Order 18, Rule 3-A has been considered to be directory in nature. Even the provision itself contemplates that as a general rule, if the party wants to examine himself as a witness, he should be examined before other witnesses are examined. However, on the basis of an Application of the party, he can be permitted to be examined as a witness after examination of other witnesses. While granting permission, the Court is required to indicate reasons in writing. However, the question is whether as an inexorable rule such permission has to be sought for at the beginning before any other witness is examined on behalf of the party or whether even at a subsequent stage after examination of some or all the witnesses the party himself can seek for permission?" 9. Observing that procedural laws are only handmaids of justice in the decision cited supra, it has been further held as under: "16. It is well settled proposition of law that rules or procedure are handmaids of justice and not its mistress. Observing that procedural laws are only handmaids of justice in the decision cited supra, it has been further held as under: "16. It is well settled proposition of law that rules or procedure are handmaids of justice and not its mistress. In R.M. Jadi and Brother v. Subhaschandra, 2007(4) CTC-331, the Supreme Court, while dealing with the provisions contained in Order 8, Rule 1, C.P.C., observed: “9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unlike compelled by express and specific language of the Statue, the provisions of the C.P.C. or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. 17. In Sangram Singh v. Election Tribunal Kotah & Anr., (Air 1955 SC-425) it was observed: “... Now a code of procedure must be regarded as such. It is procedure, some thing designed to facilitate justice and further its ends: not a Penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical construction of Sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.” 10. The second defendant had been examined as PW.1 and his evidence was adduced by filing proof affidavit and proof affidavit has been received by the Court. Prior to the filing of proof affidavit and receipt of the same, the Revision Petitioners do not appear to have raised any objection. While so, it is not open to the Revision Petitioners to seek for striking of evidence of PW.1 when he was about to be cross examined. 11. The object of Rule 3A is to prevent a party from covering the loopholes in the evidence of other witnesses examined earlier. While so, it is not open to the Revision Petitioners to seek for striking of evidence of PW.1 when he was about to be cross examined. 11. The object of Rule 3A is to prevent a party from covering the loopholes in the evidence of other witnesses examined earlier. If the Court is satisfied that the aim of the party is not intended to fill up the lacunae or cover up the gaps, then the Court can permit a party for examining himself/herself at a later stage. On such satisfaction, the learned Trial Court appears to have permitted the second defendant to be examined as PW.1. Notwithstanding the fact that the prior permission of the Court was not obtained, the Revision Petitioners are not justified in praying to strike of the evidence of PW.1. 12. Contending that calling for opposite party for examination as a witness is not a matter of course or as of right and placing reliance upon Minor Arumugam alias Logesh v. State Bank of Inida, Karur (2005) 4 M.L.J. 239 ), the learned counsel for the revision petitioners submitted that compelling parties who are real opponents, is not desirable. The learned counsel would further contend that procedure contemplated under the provisions of code is to be followed if at all the opposite party is to be examined as a witness on the plaintiffs side. 13. It was further submitted that guidelines under O.16 Rule 21 and O.16 Rule 1 CPC ought to have been followed. O.16 Rule 21 CPC reads as under: "Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable" 14. How the witnesses should be summoned for their attendance to give evidence, O.16 Rule 1 CPC lays down guidelines to the court. Rule 1 Sub-rule (2) which reads as under: "A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned". 15. Laying emphasis upon O.16 Rule 1 Sub-rule (2), Mr. Rule 1 Sub-rule (2) which reads as under: "A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned". 15. Laying emphasis upon O.16 Rule 1 Sub-rule (2), Mr. Vallinayagam, learned counsel for revision petitioners contended that plaintiff ought to have taken summons from the Court stating the purpose for which the second defendant is to be examined and it is for the Court, for reasons to be recorded, permit the party to call the opposite party by issuing summons for the attendance. It was further argued that in the absence of compliance of the procedure laid down for summoning the attendance of the second defendant for examination, the Trial Court ought to have rejected the evidence of PW.1 on the ground of procedural irregularity of examination of PW.1. 16. The above contentions cannot be countenanced. Any person could be examined as a witness on obtaining summons is one of the mode of examination of the witness. Sub-rule (3) of Rule 1 of O.16 confers a discretion on the Court to permit a party to summon through Court or otherwise any witness other than those whose names appear in the list submitted under Rule 1. Rule 1A of O.16 enables a party to bring any witness to give evidence or produce documents. Of course, this enabling provision is subject to the provision contained in Sub-rule (3) of Rule 1 of O.16. Since Rule 1A enables the party to bring any witness without applying for summons, the learned counsel for the revision petitioners is not right in contending that the procedure of examining the second defendant as PW.1 suffers from procedural irregularity. 17. On behalf of the revision petitioners, it was further argued that 2nd defendant along with other brothers has filed O.S.No.3 of 1983 on the file of Sub-court, Tirunelveli for partition and other reliefs. In the said suit, 2nd defendant and others are alleged to have executed the properties stood in the name of their mother Peer Fathumal Beevi on the ground that those properties were purchased in trust in her name from out of income of partnership firm business. The said suit O.S.No.3 of 1983 went up to Supreme Court, which has been remanded back to High Court for fresh consideration. The said suit O.S.No.3 of 1983 went up to Supreme Court, which has been remanded back to High Court for fresh consideration. The learned counsel for revision petitioners would submit that while in the earlier suit, 2nd defendant and other brothers have claimed that the properties stood in the name of their mother are not her properties but belonged to partnership firm and while so, in the present case, 2nd defendant cannot turn round and claim to depose on the side of plaintiff stating that the suit property is the property of their mother Peer Fathumal Beevi. I do not propose to go into the merits of this contention for two reasons: Firstly, the present suit property was not the subject matter of the dispute in the earlier suit in O.S.No.3 of 1983. Secondly, this contention could be raised during the trial in O.S.No.33 of 2004 and the Trial Court could go into the same while appreciating the evidence of second defendant/PW.1 It is always open to the revision petitioners to cross examine the witness on those aspects. It may be that any amount of criticism can be levelled against the evidence of 2nd defendant/DW.1. But that cannot be the reason for rejecting the evidence of 2nd defendant, who was examined as PW.1. 18. Having regard to facts and circumstances of the case, the learned Sub-ordinate Judge has rightly dismissed the petition in I.A.No.493 of 2006. The impugned order does not suffer from any legal or material infirmity warranting interference. 19. In the result, order in I.A.No.493 of 2006 in O.S.No.33 of 2004 is confirmed and this revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. The learned Sub-ordinate Judge shall proceed with the matter in accordance with law. It is made clear that the views expressed in this order may not be construed as expression of opinion on the merits of the case.