Case Note & Summary
The writ petition under Article 227 of the Constitution challenged an order dated 2 January 2012 passed by the 2nd Joint Civil Judge, Junior Division, Dhule in Regular Civil Suit No. 35 of 2010, rejecting an application (Exhibit 48) filed by the defendants under Order 18 Rule 3A of the Code of Civil Procedure, 1908. The respondents (plaintiffs) had filed the civil suit for unspecified relief. The petitioners (defendants) appeared and filed a written statement; issues were framed on 8 August 2011. After the plaintiffs completed their evidence, the defendants, who claimed to be old and suffering from ill health, sought permission to examine their son Gopichand as a witness before they themselves entered the witness box. The application stated that Gopichand cultivated their land and had personal knowledge of the facts. The plaintiffs filed a reply stating that the application was not supported by pleadings or documentary evidence of ill health. The trial court rejected the application, observing that no documentary evidence was tendered to prove old age and ill health. Aggrieved, the defendants filed the present writ petition. The primary legal issue was whether Order 18 Rule 3A CPC is mandatory or directory and whether the trial court’s rejection was justified. The petitioners contended that the provision is directory, that old age and ill health were not specifically denied by the plaintiffs and hence admitted, and that no prejudice would be caused to the plaintiffs if the son was examined first. They relied on Shah Industries v. Vadhani Industrial Estate (2009(2) Bom.C.R. 736) for the directory nature of the rule. The respondents maintained that the trial court rightly rejected the application due to lack of documentary evidence. The High Court, after reproducing Order 18 Rule 3A and examining the precedents in Shah Industries and Kumudini Damodhar Magar v. Bhushan Damodar Magar (2004 BCI (O) 52), held that the provision is directory, not mandatory, and that the only mandatory requirement is to obtain court permission. It noted that the object of the rule is to prevent a party from covering up gaps after examining other witnesses, but the court has discretion to permit deviation for reasons to be recorded. The court observed that while the trial court was correct in pointing out the absence of documentary evidence, it should have considered that the defendants could produce such evidence upon being given an opportunity, especially given the directory nature of the provision and the fact that the son had personal knowledge. Accordingly, the High Court set aside the impugned order, restored the application Exhibit 48, directed the petitioners to place documentary evidence of ill health on record, and directed the trial court to hear the application afresh and decide it on merits within one month. The writ petition was thus disposed of with rule made absolute.
Headnote
A) Civil Procedure - Examination of Witness - Order 18 Rule 3A Code of Civil Procedure, 1908 - Nature of Provision - The court considered whether Order 18 Rule 3A CPC is mandatory or directory. Referring to prior decisions, it held that the provision is directory, not mandatory, and the only mandatory requirement is obtaining court permission. The normal rule is that a party must examine himself before any other witness, but the court may permit deviation for reasons to be recorded (Paras 10-13). B) Civil Procedure - Discretion of Court - Order 18 Rule 3A Code of Civil Procedure, 1908 - Permission to Examine Other Witness First - The defendants sought permission to examine their son first, citing old age and ill health. The trial court rejected the application for lack of documentary evidence. The High Court held that while the trial court was justified in observing the absence of evidence, it should have given the defendants an opportunity to produce such evidence, considering the directory nature of the provision. Accordingly, the order was set aside and the application restored for fresh decision (Paras 14-15).
Issue of Consideration
Whether the provisions of Order 18 Rule 3A of the Code of Civil Procedure are mandatory or directory, and whether the trial court was justified in rejecting the defendants' application to examine their son as witness before they themselves examined themselves, on the ground that no documentary evidence of ill-health was produced.
Final Decision
The writ petition is allowed; the impugned order dated 2 January 2012 below Exhibit 48 in Regular Civil Suit No. 35 of 2010 is quashed and set aside; the application Exhibit 48 is restored; the petitioners (defendants) are directed to place documentary evidence of their ill health on record; the trial court is directed to hear the application afresh and decide it on merits expeditiously within one month from receipt of the order; rule made absolute.
Law Points
- Order 18 Rule 3A CPC is directory
- not mandatory
- Party must appear before other witnesses unless court permits otherwise
- Permission of court required to examine other witness before party
- Party must provide sufficient reasons for deviation
- No automatic right to examine other witness first
- Court has discretion to grant permission
