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2013 DIGILAW 235 (AP)

A. Ranga Reddy v. A. Ram Reddy

2013-03-28

B.CHANDRA KUMAR

body2013
JUDGMENT : 1. This revision is directed against the order, dated 18.02.2010 passed in I.A. No.366 of 2009 in O.S. No.119 of 2008 on the file of the Junior Civil Judge, Parigi, Ranga Reddy District. 2. The petitioner herein is the plaintiff in O.S.No.118 of 2008. He filed suit for injunction. The respondent herein is the plaintiff in O.S.No.119 of 2008 for recovery of possession. Both the suits were clubbed together. The plaintiff in O.S.No.119 of 2008 got examined PWs.1 to 3. However, he did not enter into the witness box. After completion of the evidence of PWs.1 to 3, then the respondent herein filed chief affidavit. The petitioner herein filed I.A.No.366 of 2009 under Order XVIII Rule 3-A read with Section 151 CPC praying to reject the examination in chief affidavit of PW4. The lower Court, by impugned order dated 18.02.2010, dismissed the said petition. Aggrieved by the same, the petitioner herein filed this revision. 3. The main submission of Sri Maniklal Yadav, learned counsel for the petitioner, is that Order XVIII Rule 3-A CPC specifically mandates that, where a party who wishes himself to appear as a witness, shall appear before any other witnesses on his behalf has been examined unless the Court, for the reasons to be recorded, permit to appear as a witness at a later stage. The main purpose appears to be that if other witnesses are examined before the party has entered into the witness box, the party would have an opportunity to fill up the lacunas at a later stage. Thus, the party who wishes to examine himself as a witness must enter into the witness box at the first instance and then examine the other witnesses. 4. The only point that arises for consideration is whether any interference is required. 5. Order XVIII Rule 3-A reads as follows: “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.” There are two parts in this provision. The first part imposes a condition that where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined. The first part imposes a condition that where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined. The second part enables the Court to permit him to appear as a witness even after examination of other witnesses on his behalf, but the Court has to record reasons before permitting the party to appear as a witness at a later stage. 6. There are peculiar circumstances in this case. Admittedly, both the suits were clubbed together. As seen from the affidavit filed by the respondent herein in I.A.No.366 of 2009, the respondent contended that PW1 is none other than his father, who actually purchased the suit land on his behalf from PW2. PW3 is his neighbour. The other circumstance is that the respondent has not filed any application seeking permission. He straightaway filed chief affidavit. When the petitioner herein filed I.A.No.366 of 2009, the lower Court dismissed the said application. As discussed in earlier paras, the normal procedure should be a party who wishes to examine himself as a witness must enter into the witness box. But, however, the later part of the provision makes it clear that the Court by recording reasons may permit the party to appear as a witness ever after examining other witnesses. 7. Learned counsel for the respondent relied on the decision of the Division Bench of this Court in Aitipamula Shivalingam vs Aitipamula Chinna Narasamma ( 1998 (2) ALT 7 (D.B), wherein it is observed as follows: “A combined reading of the entire Rule 3-A gives us 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. Thus, it is 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. The provision further empowers the Court to permit a party to examine himself/herself at a later stage also while recording reasons. Thus, it is 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. It is sufficient if a petition is filed as required under the provisions before the Court and the Court, if satisfied with the reasons explained in the affidavit filed in support of the petition, could allow the application/petition while recording its reasons.” As seen from the facts of that case, it is clear that the defendant in the said suit filed I.A.No.292 of 1996 under Order XVIII Rule 3-A CPC seeking permission of the Court to examine himself as a witness after examining the other witnesses on his behalf. In this case, admittedly, the respondent did not file any application seeking the permission of the Court, of course, when other side filed I.A.No.366 of 2009, he filed a counter affidavit and the lower Court, recording the reasons, dismissed the same. But the respondent herein, before filing chief affidavit ought to have filed an application as required under Order XVIII Rule 3-A CPC seeking permission to appear as his own witness at a later stage. However, no such application is filed. It is clear that there is a manifest error on the face of the record in receiving the chief affidavit of the respondent without recording reasons. 8. The learned counsel for respondent submits that interim stay granted by this Court on 23.04.2010 has been vacated on 27.10.2010, as there was no representation for the petitioner herein. The learned counsel for respondent submits that the respondent herein is not yet cross-examined before the lower Court. 9. In the above circumstances, since Order XVIII Rule 3-A CPC is not followed in this case, the impugned order is set aside. However, in the interest of justice, it is made clear that the respondent may file an application seeking permission to examine himself as a witness and the lower Court having not influenced by any of the observations made in this case may dispose of the same in accordance with law. 10. Accordingly, the Civil Revision Petition is allowed, setting aside the impugned order. There shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.