Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 25 (JK)

Ali Mohd. Khanday v. State Of J. &K.

2009-02-04

MOHAMMAD YAQOOB MIR

body2009
1. By virtue of the order impugned dated 15.05.2008 application as filed by the petitioners (plaintiffs) for recording the statement of plaintiff as their own witness has been rejected. 2. Suit captioned Ali Mohammad Khanday and others vs. Manzoor Ahmed Dar and another is pending on the file of Learned Munsiff, Pampore. After closure of the evidence of both the parties, suit has been posted for arguments. Learned counsel, while making final submissions, noticed that the statement of plaintiff as their own witness has not been recorded, therefore, filed an application styled to be application under Section 148 read with Section 151 of the CPC, wherein it is projected: (i) that the above titled case is fixed for arguments; (ii) that while perusing the statement of the witnesses, it was found that the plaintiff, as a witness has not been examined, due to the impression that the same had been recorded; (iii) that in order to record the same and arrive at the just decision, the application be allowed. 3. Respondents (defendants) in their objections have contended that the suit has been instituted on 04.03.2002. After five long years, the plaintiffs after concluding their arguments are now praying for getting statement of plaintiff as their own witness recorded. The application has been moved under wrong provision of the law. No cogent, legal or factual grounds have been mentioned in the application nor has any sufficient ground been projected. 4. Appearing counsel for the revisionists contends that though application has been filed under Section 148 read with Section 151 CPC but Learned Trial Court has dealt with it under Order 18 Rule 3 - A CPC. Therefore, it is Rules 3-A of Order 18 CPC which has governed the application. Rule 3-A is directory in its operation. Statement of plaintiff as his own witness could be permitted to be recorded. Rules and procedures are adopted and followed in a pregmatic manner so as to advance the cause of justice. In support of this contention, learned counsel placed much reliance on the judgment reported in 2007 (1) SLJ Page 81, 1990 SLJ Page 27 and 1988 SLJ Page 214. 5. Rules and procedures are adopted and followed in a pregmatic manner so as to advance the cause of justice. In support of this contention, learned counsel placed much reliance on the judgment reported in 2007 (1) SLJ Page 81, 1990 SLJ Page 27 and 1988 SLJ Page 214. 5. In the Judgment reported in 2007 (1) SLJ Page 81 (Punjab National Bank vs. Farooq Ahmed Malik and others), while following judgments reported in AIR 1989 SC 2206 and AIR 1992 SC 1768, it has been held that the rules and procedures are not themselves an end but are meant to achieve end of justice. The procedure of law is meant to further the ends of justice and not to defeat the ends of justice. 6. In the reported case, suit was consigned to records. For restoration, application was filed which was claimed to be barred by limitation but there was no order of dismissal. It was held that by invoking jurisdiction under Section 151 CPC, the order can be re-called and case dealt with. 7. In the Judgment Romesh Kumar vs. Chaman Lal, reported in SLJ 1990 Page 27, Rule 3-A of Order 18 CPC has been held to be directory and it has been further more held: "In whatever manner we interpret Rule 3 - A, it comes out that a party can appear as a witness at a later stage with permission of the Court if it shows sufficient reasons for it and the Court while permitting it to appear as a witness, after its witnesses had been examined, has to record reasons and to see whether the party is not appearing in order to fill up any blanks or lacuna left out in evidence already given " 8. In the Judgment M/s Goverdhan Ram Vaishnu Bhagat vs. Dev Raj, reported in SLJ 1988 Page 214, it has been held that the use of the word `shall in Rule-3 A is directory. Further more, it has been held: "It is implicit in the provisions of Rule 3 -A that the Court should exercise the discretion in such a manner judicially that the very purpose of the provision should not be defeated. Further more, it has been held: "It is implicit in the provisions of Rule 3 -A that the Court should exercise the discretion in such a manner judicially that the very purpose of the provision should not be defeated. If Rule 3-A is applied only to facilitate a party to fill the lacuna in the evidence which may be recorded before his statement and to mould his own statement to suit his convenience, the very purpose of the provision will be frustrated and it will multiply the habit of manoeuvring and mending the statement of the party. It is thus manifestly clear that the trial Court whenever approached for deviation that the deferring of the statement will not be misused to prejudice the case of the adversary and the application is made in good faith for postponement of his statement" 9. It is trite that the word `shall occurring in Rule 3-A of Order 18 CPC is directory. It shall be quite relevant to reproduce the rule: "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" 10. In a suit as per the Rule, plaintiff has choice to appear as his own witness, in case he so wishes, has to appear before any other witness on his behalf examined. This position is controlled by later part of the Rule i.e. the plaintiff can be permitted to appear as his own witness at a `later stage provided court on recording reasons permits so. The word `later stage as occurring in the said Rule has to be clarified, for the said purpose, Rule 3-A has to be read with Rule 3 Order 18 CPC. The word `later stage as occurring in the said Rule has to be clarified, for the said purpose, Rule 3-A has to be read with Rule 3 Order 18 CPC. Rule 3 reads as under: - "Evidence where several issues: Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and, in the later case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply especially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case." 11. As per Rule 3-A, plaintiff can be permitted to appear as his own witness at `later stage. Later stage includes three stages of the suit i.e. firstly, upto the closure stage of the evidence of the plaintiff; secondly, when the plaintiff has opted to produce the evidence on certain issues after production of the evidence by the defendants then upto the stage plaintiff produce evidence; thirdly, when the plaintiff has produced the witness and defendant has also produced the witness, then finally, when the plaintiff in rebuttal has produced the witness generally on the whole case, upto closure of the said evidence. 12. When the evidence in rebuttal has been finally closed then there is no scope for plaintiff to seek permission for being examined as his own witness. Later stage as appear in Rule 3-A so Order 18 CPC does not include any stage after the case is posted for final arguments. 13. In the instant case evidence has been finally closed. Case on the own showing of the petitioners has been posted for arguments when according to respondents; plaintiffs (petitioners) after concluding their argument have filed the application. In both cases, if the application is allowed, same shall amount to observance of the rule in breach. Rule, no doubt, is directory, plaintiff as his own witness can appear as witness but not after the case has been posted for final arguments, otherwise it will not only amount to reopening of the case but shall be prejudicial as well. 14. Rule, no doubt, is directory, plaintiff as his own witness can appear as witness but not after the case has been posted for final arguments, otherwise it will not only amount to reopening of the case but shall be prejudicial as well. 14. It may not be out of place to add that the application filed by the petitioners that too at belated stage does not disclose any valid reason which otherwise would persuade the court to permit the plaintiffs to appear as their own statement. It appears that while finally arguing the case, counsel for the petitioners has noticed defects, therefore, for filling up of the gaps has filed the application, which has the effect of protracting and prolonging the litigation. On both counts i.e. application having been filed at a stage of final arguments; secondly, even if, application would have been filed at relevant `later stage as permissible under Rule 3-A, still no plausible ground which would persuade the court to grant requisite leave is made out. 15. Viewed thus, order under challenge for the aforesaid stated reasons is maintained, resultantly, revision petition dismissed. Stay granted on 04.07.2008 is vacated. Copy of the order be sent to the trial court for information. 16. Disposed of as above alongwith connected CMPs.