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Tuesday, April 15, 2014

Or.18, rule 3 A - permission is a conditional precedent for examining the party to suit after examining the other witnesses - else it can not be received - Trial court committed wrong - without an application for permission strait away received the chief affidavit of the party to the suit after completion of his other wittiness - their lordships of High court set aside the order of trial court and allowed the revision =A.Ranga Reddy, S/o.Parma Reddy, Age: 50 years, Occ: Agriculture, R/o.Sankepally Village, Shankarpally Mandal, Rangareddy District. A.Ram Reddy, S/o.Anantha Reddy, Age: 30 years, Occ: Agriculture, R/o.Sankepally Village, Shankarpally Mandal, Rangareddy District.= 2013 ( March. Part ) http://judis.nic.in/judis_andhra/filename=9801

Or.18, rule 3 A - permission is a conditional precedent for examining the party to suit after examining the other witnesses - else it can not be received - Trial court committed wrong - without an application for permission strait away received the chief affidavit of the party to the suit after completion of his other wittiness - their lordships of High court set aside the order of trial court and allowed the revision =

Aitipamula Shivalingam vs Aitipamula Chinna Narasamma1, 
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.
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.
2013 ( March. Part ) http://judis.nic.in/judis_andhra/filename=9801
THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR        

CIVIL REVISION PETITION NO.1393 OF 2010    
               
28.03.2013

A.Ranga Reddy, S/o.Parma Reddy, Age: 50 years, Occ: Agriculture, R/o.Sankepally  
Village, Shankarpally Mandal, Rangareddy  District.

A.Ram Reddy, S/o.Anantha Reddy, Age: 30 years, Occ: Agriculture, R/o.Sankepally  
Village, Shankarpally Mandal, Rangareddy  District.

<GIST:

>HEAD NOTE:  

Counsel for Petitioner:  Sri Maniklal Yadav

Counsel for Respondent: Sri Gaddam Srinivas

?Cases referred
1998 (2) ALT 7 (D.B)

ORDER:

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 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 Narasamma1,
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.
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.
__________________  
B.CHANDRA KUMAR, J    
28th March, 2013

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