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2014 DIGILAW 1734 (HP)

Brig. S. C. Kuthiala v. Radha Krishan Kuthiala

2014-11-25

TARLOK SINGH CHAUHAN

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ORDER : Tarlok Singh Chauhan, J. The plaintiff-applicant has preferred this application under Order 18 Rule 3A read with Section 151 CPC for grant of permission to examine himself after the examination of other witnesses. It is averred that the case had been fixed on 1st April, 2014 for recording the statements of witnesses on behalf of the plaintiff and on such date only one official witness appeared, who had not brought the summoned record but then the defendants had objected that the plaintiff be first examined as per the provisions of Order 18 Rule 3A CPC. It is claimed that most of the witnesses ref erred to in the list of witnesses filed on behalf of the plaintiff are witnesses of record and, therefore, statement of the plaintiff cannot be recorded till and so long these documents are not exhibited. 2. The defendants/non-applicants have filed reply wherein it has been stated that the evidence of the official witnesses in the case has no relevance with the statement of the plaintiff because the plaintiff has not to prove any document summoned from the witnesses. Under the law, the plaintiff has to open his case, but in the present case, he is abusing the process of the Court by summoning such witnesses, whose statements have no relevance to the issues framed in the case. According to the defendants, the only issue involved in the case is whether so-called relinquishment deed/release deed is a genuine document or a forged and fabricated document manufactured on the basis of a forged and fabricated alleged Power of Attorney. The plaintiff by introducing family history is trying to complicate the matter. 3. This Court on 14.08.2013 framed the following issues:- 1. Whether the plaintiff is exclusive owner of the suit property on the basis of relinquishment deed dated 04.05.2010, said to have been executed in his favour by defendant No.1 through his power of attorney, Sh. Lakhwinder Singh son of Sh. Charan Singh? OPP 2. In case issue No.1 is proved in affirmative, whether sale deed dated 07.08.2012, executed by defendant No.1 in favour of defendant No.2, is illegal, null and void and not binding on the rights of the plaintiff, as alleged? OPP 3. In case issue No.2 is proved in affirmative, whether the plaintiff is entitled for grant of a decree for declaration along with consequential relief, as prayed for? OPP 4. OPP 3. In case issue No.2 is proved in affirmative, whether the plaintiff is entitled for grant of a decree for declaration along with consequential relief, as prayed for? OPP 4. Whether the power of attorney on the basis of which relinquishment deed dated 04.05.2010 has been executed by Sh.Lakhwinder Singh son of Sh. Charan Singh, is a fake and forged document, as alleged and if so, its effect? OPD. 5. Relief. 4. The learned counsel for the plaintiff strenuously argued that in order to prove the issues, the plaintiff would be required to give some background as to how the relinquishment deed dated 04.05.2010 came to be executed in his favour by defendant No.1 through his power of attorney Sh.Lakhwinder Singh son of Sh. Charan Singh and the issues cannot be proved simply by making a reference to the document. While, on the other hand, the learned counsel for the defendants/non-applicants has vehemently opposed the claim of the plaintiff by saying that in terms of the mandate of Order 18 Rule 3A CPC, a party is required to appear in the witness box before the other witnesses are examined. 5. Order 18 Rule 3A CPC reads as follows:- "3A 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.'' 6. The question as to whether this rule is mandatory or directory came up for consideration before a Division Bench of this Court in Smt. Uma Devi v. Smt. Raj Kumari (1981) 10 Indian Law Reports (Himachal Series) 16 wherein it was held as under:- "2. Whether a party who wishes to appear as a witness is required to obtain the permission of the court to appear at a later stage before any other witness on his behalf has been examined or the party can ask for the permission at any stage before concluding his evidence? Is the question which falls for determination in these revisions. The facts are not relevant. Suffice it to say that in all the cases either the plaintiff or the defendant did not ask for permission to examine himself at a later stage before examining his witnesses. Is the question which falls for determination in these revisions. The facts are not relevant. Suffice it to say that in all the cases either the plaintiff or the defendant did not ask for permission to examine himself at a later stage before examining his witnesses. The trial court has refused permission in view of the judgment of a learned single Judge of this Court in Civil Revision No. 197 of 1979, Chet Ram v. Rajinder Kaur, decided on 7th May, 1980, where the learned Judge, following a judgment of a learned single Judge of the Orissa High Court in Jagannath Nayak v. Laxminarayan Thakur, AIR 1978 Orissa 1 held, that rule 3 A of Order 18 of the Code of Civil Procedure requires a party to obtain the requisite permission before examining his witnesses. As a Division Bench of Orissa High Court has since overruled the case of Jagannath Nayak, the matter has been referred to a Division Bench of this Court. 3. In the trial of civil suits a practice had grown up to examine the party after the party had examined his witnesses. This perhaps was done in order to fill up the lacuna left by the witnesses. This practice was, from time to time, frowned upon but since the law gave a right to the party to produce and examine his witnesses in the manner he liked the practice could not be curbed. The Law Commission in order to curb this practice, in its 54th Report recommended : "18.3. The Fourteenth Report had recommended that ordinarily, a party who wishes to be examined as a witness should offer himself first, before the other witnesses are examined. The Commission, in its Report on the Code, however, considered it unnecessary to make any such statutory provision. It noted that this should be the ordinary rule, but thought that a rigid provision on the subject would not be desirable. 18.4. We think that the amendment recommended in the 14th Report should be carried out. Since the proposed rule will be confined to ordinary cases, the hardships arising from special features of the case, should not present a problem. Having regard to the persistent and notorious malpractice indulged in by litigants in this respect-malpractice which borders on dishonesty -we think that the time has come to insert a statutory provision." 4. Since the proposed rule will be confined to ordinary cases, the hardships arising from special features of the case, should not present a problem. Having regard to the persistent and notorious malpractice indulged in by litigants in this respect-malpractice which borders on dishonesty -we think that the time has come to insert a statutory provision." 4. The result of the recommendation was the addition of rule 3A in Order 18 of the Code of Civil Procedure. Rule 3A reads ; "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." 5. No doubt this rule is mandatory. It enjoins upon a party, who wishes to appear as a witness, to examine himself first before examining any other witness on his behalf. However, an exception has been made. The court has been given the discretion to allow a party to examine himself later on after examining one or more witnesses on his behalf. But we do not find anything in this rule which compels a party to ask for the requisite permission from the court before he examines his first witness. We cannot overlook the fact that the rule is a procedural one. It is meant to curb a particular evil for the enhancement of justice. It has to be interpreted in such a manner that while the evil is curbed, it does not lead to any injustice. 8. We, therefore, hold that a party who wishes to examine himself at a later stage is not bound to ask for the permission of the court before examining his first witness, and that the party can ask for the permission at a later stage. However, we must emphasise that the trial courts should remember that it is the duty of a party to examine himself first in case the party wishes to appear as his own witness. The discretion which has been given by the exception has not to be exercised lightly. It is for this reason that it is enjoined upon the courts to record their reasons in writing while allowing the party to examine himself at a later stage. The discretion which has been given by the exception has not to be exercised lightly. It is for this reason that it is enjoined upon the courts to record their reasons in writing while allowing the party to examine himself at a later stage. It is neither possible nor desirable to lay down any hard and fast rules for the exercise of this discretion. The facts of each case are bound to vary. But the party must have some weighty reasons to convince the court for not examining himself first before the court exercises its discretion in favour of the party. It may be repeated that rule 3A has been framed to curb the evil practice of a party examining himself last." 7. In view of the aforesaid exposition of law, there is no gain saying that a party can always be permitted to examine its witnesses before stepping into the witness box subject to the condition that the party seeks permission of the Court. This is only an exception and not a rule and, therefore, the discretion has not to be exercised lightly. 8. I find considerable force in the submissions of the learned counsel for the plaintiff that the issues cannot be simply answered in 'Yes' or 'No' or by a mere reference to the relinquishment deed or by making a reference to the power of attorneys which documents alone find mention in the issues framed. The plaintiff-applicant will have to build an edifice upon which his structure would stand. How and in what manner the relinquishment deed came into existence and how and in what manner the power of attorney came to be executed, what was the relationship interse parties and how the same was carried forward, would be certain essenti al questions which will have to be introduced by the plaintiff while proving the issues the onus of which has been fastened upon him. In this process, it can happen that certain documents may also be required to be proved from the witnesses. 9. In view of the aforesaid discussion, there is merit in this application and the same is allowed subject to the condition that the plaintiff shall step into the witness box immediately after the witnesses of record are examined. The application is disposed of with no order as to costs.