Madras High Court
K.P.Gandhi vs Jayagandhi on 7 January, 2021
CRP.PD.No.3067 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.3067 of 2015 and
MP.No.1 of 2015
K.P.Gandhi ..Petitioner
Vs.
Jayagandhi ..Respondent
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India against the fair and decreetal orders dated
23.04.2014 of the learned District Munsif at Dharmapuri in IA.No.297
of 2014 in OS.No.67 of 1999, which suit has been now transferred to
the file of the learned District Munsif at Palacode against order dated
04.12.2014 and pending there for trial.
For Petitioner : Mr.S.Sudharshan
for Mr.S.Subramanian
For Respondent : No appearance
ORDER
This civil revision petition is directed as against the fair and
decretal order passed in IA.No.297 of 2014 in OS.No.67 of 1999 dated
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.3067 of 2015
23.04.2014 on the file of the learned District Munsif at Dharmapuri
thereby dismissing the petition filed by the petitioner to reopen the case for
his evidence.
2. The petitioner is the second defendant in the suit filed by the
respondent herein. After closing the plaintiff's evidence, defendants were
examined as DW1 and DW2. Thereafter the evidence of defence was closed
suo moto by the trial court. Therefore, the petitioner filed petition to reopen
and the same was allowed. The application in IA.No.137 of 2014 was allowed
with the cost of Rs.2,000/-. The petitioner after payment of cost of Rs.2,000/-
to the other side, the petitioner filed proof affidavit. At that juncture, the
trial court rejected the proof affidavit for the reason that the petitioner ought
to have obtained necessary permission as provided under Order 18 Rule 3 (A) of
CPC. Therefore, again the petitioner filed petition to reopen the defendants'
evidence to examine himself as witness and the same was dismissed on the
ground that it is well settled law that if a party wants to examine an
independent witness he has to file an application under Order 18 Rule 3 (A) of
CPC and reserves his right and then only he has to examine independent
witness. In this regard, the learned counsel for the petitioner relied upon the
judgment in the case of Ravi and Gurunathapillai Vs. Ramar reported in
2008 (1) CTC 36 in which, the Hon'ble Division Bench of this Court has held as
follows:
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CRP.PD.No.3067 of 2015
18. A perusal of the decisions of different High Courts indicate
that the provision contained in Order 18 Rule 3(A) has been considered
to be directory in nature. Even the provision itself contemplates that
as a general rule, if the party wants to examine himself as a witness,
he should be examined before other witnesses are examined.
However, on the basis of an application of the party, he can be
permitted to be examined as a witness after examination of other
witnesses. While granting permission, the court is required to indicate
reasons in writing. However, the question is: whether as an inexorable
rule such permission has to be sought for at the beginning before any
other witness is examined on behalf of the party or whether even at a
subsequent stage after examination of some or all the witnesses the
party himself can seek for permission?.
19. As observed in the various decisions and more particularly
in the decisions of the Division Benches of Punjab & Haryana, Jammu
& Kashmir, Patna and Orissa High Courts, what is necessary is that
before giving such permission, the court is required to give reasons
and obviously the reasons must be relevant. However to lay down as
an inexorable rule that in no case such an application can be filed
after the examination of any other witness may result in injustice.
20. Keeping in view the principle that procedural rules are
normally considered as directory unless the consequence of not
following the procedure is specifically indicated, it would be
appropriate to hold that the Court can give permission to the party to
examine himself at a later stage even if no such permission had been
sought for at the very threshold. As a matter of fact, save and except
in one or two decisions of the single Judges of the Madras High Court,
most of the High Courts, including many of the Judges of Madras High
Court, have preferred to follow a more liberal path of laying down the
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CRP.PD.No.3067 of 2015
proposition that even where such permission has not been sought for
at the threshold, such permission can be granted for relevant reasons
at a later stage. This is not to suggest that as and when such petition
is filed the Court is bound to grant such permission merely for the
asking. Obviously, the Court is required to consider the matter in its
proper perspective and is required to find out as to why the party
could not examine himself at the beginning and also as to why the
application for seeking such permission was not filed at the threshold.
If the Court finds that the party deliberately held himself back with a
view to fill-up the lacunae in the evidence at a later stage, obviously
such permission is to be refused irrespective of the fact whether
permission is sought for at the threshold or at a later stage. If
convinced on such aspects, the Court may permit the party to examine
himself as a witness at a later stage. What is important is recording of
reasons and obviously it means reasons which are germane to the
matter, that is to say, relevant for the purpose.
The Hon'ble Division Bench of this Court held that procedural rules are
normally considered as directory unless the consequence of not following the
procedure is specifically indicated, it would be appropriate to hold that the
Court can give permission to the party to examine himself at a later stage even
if no such permission had been sought for at the very threshold.
3. In view of the above dictum laid down by the Hon'ble Division
Bench of this Court, the order passed by the trial court is perverse and illegal.
Accordingly, this Civil Revision Petition is allowed, and the order dated
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CRP.PD.No.3067 of 2015
23.04.2014 passed in IA.No.297 of 2014 in OS.No.67 of 1999 by the
court below is set aside. Further, Considering the year of the suit, the
petitioner is directed to complete his evidence within a period of four weeks
from the date of receipt of copy of this order. Thereafter, the trial court is
directed to dispose of the main suit within a period of six months.
Consequently, connected miscellaneous petition is closed. No order as to
costs.
07.01.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.3067 of 2015
G.K.ILANTHIRAIYAN,J.
lok
To
1.The District Munsif at Dharmapuri
2.The learned District Munsif at Palacode
CRP.PD.No.3067 of 2015
07.01.2021
https://www.mhc.tn.gov.in/judis/
