Case Note & Summary
The petitioners, defendants in a suit for specific performance of a contract based on email exchanges, challenged the trial court's order allowing the plaintiff-company to file an evidence affidavit of its director, Mr. Arvind Gowda, after the examination of its constituted attorney, Mr. Vijendra Rao. The defendants objected under Order 18 Rule 3A CPC, arguing that a party must be examined before other witnesses, and under Order 16 Rule 1 CPC for not filing a list of witnesses. The trial court rejected these objections. The High Court upheld the trial court's order, holding that Order 18 Rule 3A CPC applies only to a party who is a natural person; a company, being a juristic entity, cannot be examined in person, and its director is not a 'party' under the rule. Therefore, the director can be examined at any stage without prior permission. The court also held that the requirement to file a list of witnesses under Order 16 Rule 1 CPC is directory, not mandatory, and non-filing does not bar examination if no prejudice is caused. The court further noted that mere apprehension of improvement of case is not a ground to reject evidence. The writ petition was dismissed, and the trial court was directed to proceed with the suit expeditiously.
Headnote
A) Civil Procedure - Order 18 Rule 3A CPC - Applicability to Company Director - Order 18 Rule 3A CPC requires a party who wishes to be examined as a witness to appear before other witnesses - Held that a company being a juristic entity cannot be examined in person; its director is not a 'party' under the rule, and therefore the rule does not apply - The director can be examined at any stage without prior permission (Paras 4-10).
B) Civil Procedure - Order 16 Rule 1 CPC - List of Witnesses - The requirement to file a list of witnesses under Order 16 Rule 1 CPC is directory and not mandatory - Non-filing does not automatically bar a witness from being examined, especially when no prejudice is caused to the opposite party (Paras 11-12).
C) Civil Procedure - Evidence of Director - Improvement of Case - Mere apprehension that the director's evidence may improve the plaintiff's case is not a valid ground to reject the evidence affidavit - The trial court can assess the evidence at the final stage (Para 13).
Issue of Consideration
Whether the evidence affidavit of a director of a plaintiff-company can be rejected on the ground that it was filed after the examination of the constituted attorney, in alleged violation of Order 18 Rule 3A of the Code of Civil Procedure, 1908.
Final Decision
The High Court dismissed the writ petition, upholding the trial court's order dated 16th July, 2018. The court held that Order 18 Rule 3A CPC does not apply to a director of a company as the company is a juristic entity and the director is not a 'party' under the rule. The requirement of filing a list of witnesses under Order 16 Rule 1 CPC is directory. The trial court was directed to proceed with the suit expeditiously.
Law Points
- Order 18 Rule 3A CPC applies only to a party who is personally examined
- not to a director of a company
- company being a juristic entity must act through natural persons
- director can be examined at any stage without prior permission
- list of witnesses under Order 16 Rule 1 CPC is directory not mandatory
Case Details
WRIT PETITION NO. 3685 OF 2019 IN SUIT NO. 1767 OF 2008
Mr. S.S. Kanetkar for petitioners, Mr. Rohan Mirpury i/by Mr. Abhishek Srinivasan for respondent
Mrs. Anju Toshniwal and Ors.
Expat Properties India Ltd.
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Nature of Litigation
Civil writ petition challenging trial court order allowing evidence affidavit of director of plaintiff-company in a suit for specific performance.
Remedy Sought
Petitioners (defendants) sought to quash the trial court order dated 16th July, 2018 allowing the plaintiff to file evidence affidavit of its director after examination of constituted attorney.
Filing Reason
Defendants objected to the evidence affidavit of the director on grounds of violation of Order 18 Rule 3A and Order 16 Rule 1 CPC.
Previous Decisions
Trial court allowed the defendants' application on 16th July, 2018, holding that the director's affidavit cannot be rejected.
Issues
Whether Order 18 Rule 3A CPC applies to a director of a plaintiff-company?
Whether non-filing of list of witnesses under Order 16 Rule 1 CPC bars examination of a witness?
Whether the director's evidence can be rejected on apprehension of improvement of case?
Submissions/Arguments
Petitioners argued that Order 18 Rule 3A requires a party to be examined before other witnesses; director is a party and should have been examined first.
Petitioners argued that no list of witnesses was filed as required under Order 16 Rule 1 CPC.
Petitioners argued that allowing director's evidence would permit improvement of the plaintiff's case.
Respondent argued that a company is a juristic entity and cannot be examined; director is not a party under Order 18 Rule 3A.
Respondent argued that Order 16 Rule 1 is directory and no prejudice was caused.
Ratio Decidendi
Order 18 Rule 3A CPC applies only to a party who is a natural person; a company being a juristic entity cannot be examined in person, and its director is not a 'party' under the rule. Therefore, the director can be examined at any stage without prior permission. The requirement to file a list of witnesses under Order 16 Rule 1 CPC is directory and not mandatory.
Judgment Excerpts
Order 18 Rule 3A of the CPC applies only to a party who is a natural person and who wishes to be examined as a witness. A company being a juristic entity cannot be examined in person. Therefore, the director of a company is not a 'party' under Order 18 Rule 3A.
The requirement of filing a list of witnesses under Order 16 Rule 1 CPC is directory and not mandatory. Non-filing does not automatically bar a witness from being examined, especially when no prejudice is caused to the opposite party.
Procedural History
The respondent-plaintiff filed Special Civil Suit No. 1767 of 2008 for specific performance. Plaintiff filed evidence affidavit of constituted attorney Mr. Vijendra Rao (P.W.1), who was cross-examined. Thereafter, plaintiff filed evidence affidavit of director Mr. Arvind Gowda. Defendants objected on 3rd April, 2018. Trial court allowed the application on 16th July, 2018. Defendants filed Writ Petition No. 3685 of 2019 in the High Court. The High Court reserved judgment on 9th August, 2019 and pronounced on 23rd August, 2019, dismissing the petition.
Acts & Sections
- Code of Civil Procedure, 1908: Order 18 Rule 3A, Order 16 Rule 1
