Bombay High Court
Sanj Dainik Lokopchar, Thr. Owner ... vs Gokulchand Govindlal Sananda on 11 October, 2018
Bench: R. B. Deo
wp5124.17.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5124 O
F 2017
1] Sanj Dainik Lokopchar
An evening daily through its
owner Kishor Babubhai Ruparel.
2] Kishor Babubhai Ruparel
Aged about 67 years,
Occupation: Journalism & Social
Service.
3] Chanakya Offset Printers
through its owner
Kishor Babubhai Ruparel
No.1 to 3 C/o Sunny Tower,
Main Road Khamgaon,
Tq. Khamgaon, Dist. Buldana. ....... PETITIONER S
...V E R S U S...
Gokulchand Govindlal Sananda,
Aged about 78 years,
Occupation: Money Lending & Agriculture
R/o Balaji Plots, Khamgaon,
Tq. Khamgaon, Dist. Buldana. ....... RESPONDENT
-------------------------------------------------------------------------------------------
Shri Amit Bhate, Advocate for Petitioner.
Shri Ashwin Deshpande, Advocate for Respondent.
-------------------------------------------------------------------------------------------
CORAM: ROHIT B. DEO , J.
DATE: th
11 OCTOBER,
8 .
ORAL JUDGMENT
1] Heard Shri Amit Bhate, the learned Counsel for the
petitioners and Shri Ashwin Deshpande, the learned Counsel for
respondent.
2] Rule. Rule made returnable forthwith by consent of
the learned Counsels for the parties.
3] The petitioners are the defendants in Special Civil Suit
17/2013 instituted by respondent - plaintiff seeking decree of
damages for defamation.
4] The respondent - plaintiff moved an application Exh.
97 seeking permission to examine his power of attorney before he
steps into the witness box. The application is presumably moved
under Order XVIII, Rule 3-A of the Code of Civil Procedure (Code).
5] The application is predicated on the assertion that the
power of attorney holder - who is the son of the plaintiff is
personally acquainted with the facts. The averment in the
application is that the plaintiff is aged 80 years and is suffering
from various ailments. The only other relevant averment is in
paragraph 3 of the application which is that no prejudice would be
caused to the defendants if the son of the plaintiff is examined
before the plaintiff.
6] The defendants opposed the application Exh.97
inter alia denying that the plaintiff is suffering from various
ailments. The defendants pointed out that most of the documents
placed on record by the plaintiff to substantiate the contention
that he was not keeping well are more than a decade old.
The defendants further pointed out that adjournment was sought
by the plaintiff on 20.12.2016 on the ground that he is busy in
attending a family wedding function. In paragraph 6 of the reply
to Exh.97 the defendants pointed out that the plaintiff inaugurated
and attended the District Level Wrestling Selection Competition
on 08.01.2017. In support of the said assertion the defendants
placed on record the newspaper reports.
7] By the order impugned 20.02.2017 the Trial Court
allowed the application on the ground that the plaintiff is aged
person and is suffering from various ailments and that prima facie
it is established that the plaintiff is unable to appear and step into
the witness box as the first witness. This order is impugned herein.
8] The legislative mandate is that ordinarily where a
litigant himself wishes to appear as a witness, he shall so appear
before any other witness on his behalf has been examined.
9] The provision confers a discretion to the Court to
permit, for reasons to be recorded, the plaintiff to appear as his
own witness at a later stage. Implicit in the statutory scheme is the
rider that the normal rule may be deviated from only in
exceptional circumstances and for reasons recorded which must
sustain judicial review.
10] Rule 3-A has been inserted by the Code of Civil
Procedure (Amendment) Act, 1976. The Law Commission noted
with concern the unhealthy practice which has developed which
enabled the party to step into the witness box last to fill in the
lacuna, or loopholes which remained in the deposition.
Addressing the said issue, the Law Commission in 14th Report
observed thus:
In dealing with the question of oral evidence
we wish to refer to an undesirable practice which
seems to prevail in certain courts. The plaintiff or
the defendant upon whom lies the burden of proving
certain issues and who has to give evidence in
support of his case is not called as witness before the
evidence of the other witnesses is recorded. He is
called after all his witnesses have been examined.
The underlying purpose of this practice appears to
be that the plaintiff or the defendant giving evidence
at the end may be able to fill in gaps in the evidence
given by his witnesses. We strongly deprecate this
practice and recommend that it should be stopped.
The parties to a proceeding should be in a
position at the commencement of the proceedings to
make up their minds whether they wish to give
evidence. If they do wish they should be required to
enter the witness box before any of their witnesses
are examined. We recommend that Rule 2 or Rule 3
of Order XVIII of the Code of Civil Procedure be
suitably amended so as to embody such a provision.
11] The 27th Report of the Law Commission notes thus:
The Fourteenth Report has recommended
that, ordinarily, a party who wishes to be examined
as a witness should offer himself first, before the
other witnesses are examined. It is however,
considered unnecessary to make any such statutory
provision. This should be the ordinary rule; but a
rigid provision on the subject does not seem to be
desirable.
12] Finally, the 54th Report of the Law Commission
recommended thus:
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.
13] The legislative object of bringing on statute Rule 3-A
is to ensure that a litigant should not be permitted to bide his time
and to fill in the lacuna or cover the loopholes after the other
witnesses are examined.
14] The order impugned is unsustainable in law for
reasons more than one.
15] Firstly, it is difficult to believe that the plaintiff is
suffering from various ailments to such an extent that he is not in
a position to step into the witness box as the first witness.
The material on record, particularly the material placed on record
by the defendants, would suggest to the contrary. Moreover, if the
plaintiff is not in a position to attend the Court, the appropriate
course would have been to move an application seeking
examination on commission. It is difficult to appreciate as to how,
if the plaintiff is suffering from ailments and is therefore, not in a
position to depose as the first witness, would the plaintiff be in a
position to do so after his son is examined as the first witness.
Be it noted, that the suit is expedited by the Hon'ble Apex Court
and the direction is to decide the suit within a year. It would
follow, that the plaintiff would have to step into witness box in
close proximity of time after his son is examined as the first
witness, assuming that the order impugned is upheld. It is not
conceivable that the plaintiff, who contends that he is not in a
position to attend the Court, would be hale and hearty and in a
position to attend the Court within a few days after the
examination of his son as the first witness.
16] Secondly, the discretion under Order XVII, Rule 3-A of
the Code ought not to be exercised in favour of a litigant who opts
to mark time to assess how the power of attorney - son fares in
the evidence and then depending on the evidence of the power of
attorney - son takes a call on stepping into the witness box, which
clearly appears to be the case here.
17] I am satisfied that the order impugned militates
against the object and intendment of Order XVIII, Rule 3-A of the
Code.
18] The order impugned is quashed and set aside.
19] The Trial Court shall decide the suit with utmost
priority in view of the directions issued by the Hon'ble Apex Court.
The trial shall be conducted on a day-to-day basis and
adjournment shall not be granted for any reason whatsoever,
unless extremely exceptional and compelling case is made out.
The parties shall bring this order to the notice of the Trial Court.
20] Rule is made absolute in the afore-stated terms.
JUDGE
NSN
