Madras High Court
Sri Venkataramana Cotton Mills vs Sri Kannapiran Spinning Mills on 22 October, 2021
C.R.P.(PD)No.3412 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD)No.3412 of 2017
Sri Venkataramana Cotton Mills
Represented by its Proprietor
Sri.Magam Ravi
S/o.Magam Pullaiya
Represented by its Power Agent
M.Nagasudarasan
S/o.Subramaniam
Old No.102, New No.108
Periyasamy Road West, R.S.Puram
Coimbatore – 641 002. ... Petitioner
Vs.
1.Sri Kannapiran Spinning Mills
Represented by its Partner Sri.Devarajan
S/o.Karuppa Konar (late)
2.Sri Devarajan
3.Manoranjitham
4.D.Suresh Babu ... Respondents
1/16
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India against the fair and decretal order dated 13.07.2017
made in I.A.No.470 of 2017 in O.S.No.584 of 2011 on the file of I
Additional District Court, Coimbatore.
For Petitioner : Mr.C.R.Prasanan
For R1 : Mr.S.Thangavel
For R2 to R4 : No appearance
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
Civil Revision Petition is filed against the fair and decretal order
dated 13.07.2017 made in I.A.No.470 of 2017 in O.S.No.584 of 2011 on
the file of I Additional District Court, Coimbatore.
2.The petitioner is the plaintiff and the respondents are the
defendants in O.S.No.584 of 2011 on the file of I Additional District
Court, Coimbatore. The petitioner filed the said suit for recovery of
money for the goods supplied to the respondents. The 1st respondent is
the partnership firm. The 2nd respondent filed written statement and the
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
same was adopted by the respondents 1 and 3. The trial commenced. The
petitioner let in evidence and closed their side. The respondents
examined an Accountant as D.W.1 stating that he is aware of the facts
and he was cross-examined by the counsel for the petitioner. After
cross-examination of D.W.1 by the counsel for the petitioner, the 2nd
respondent filed proof affidavit to examine himself as D.W.2. The
petitioner filed the present I.A.No.470 of 2017 under Order XVIII Rule
3-A read with Section 151 of C.P.C. contending that when a party to the
suit wishes to give evidence, he must be examined before any other third
party is examined. A party can file an application under Order XVIII
Rule 3-A of C.P.C. seeking permission from the Court to examine himself
after examining the third party. Unless the Court grants such permission,
the party cannot examine himself after examining third party as first
witness. Based on these averments, the petitioner filed present
I.A.No.470 of 2017 for a direction to hold that evidence of alleged
witness Devarajan is not admissible and barred under Order XVIII Rule
3-A of C.P.C.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
3.The respondents filed counter affidavit and stated that the 1st
respondent is a partnership firm and all the amounts due to the petitioner
are paid. D.W.1 is Accountant of the 1st respondent firm and hence he is
not a third party. The 2nd respondent is a partner of the 1st respondent
firm, both D.W.1 and D.W.2 are not different entities and both of them
are giving evidence on behalf of the partnership firm and hence, Order
XVIII Rule 3-A of C.P.C. is not applicable, the application is not
maintainable and prayed for dismissal of the said I.A.
4.The learned Judge considering the averments in the affidavit and
counter affidavit, dismissed the I.A.
5.Against the said fair and decretal order dated 13.07.2017 made in
I.A.No.470 of 2017 in O.S.No.584 of 2011, the petitioner has come out
with the present Civil Revision Petition.
6.The learned counsel appearing for the petitioner contended that
the learned Judge failed to see that as per Order XVIII Rule 3-A of
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
C.P.C., a party must examine himself first and without obtaining
permission to examine himself at later stage, he is not entitled to give
evidence after examining third party as first witness. The purpose of
Order XVIII Rule 3-A of C.P.C. is to ensure fair trial and the Court by
recording reason can permit a party to examine himself as witness after
examining any party as first witness. The respondents have not filed any
application under Order XVIII Rule 3-A of C.P.C. seeking permission to
examine the 2nd respondent as witness after examining any party. The 2nd
respondent filed proof affidavit as D.W.2 only to fill in lacunae, the same
cannot be permitted and prayed for allowing the Civil Revision Petition.
The learned counsel for the petitioner in support of his contentions,
relied on the following judgments:
(i)1987 TNLJ 340 (V.Jayakannan and 3 others vs. V.K.Sampath
alias V.K.Sampath Kumar);
“Rule 3-A expressly provides that, if a party
wishes to appear as a witness, then he shall so appear
before any other witness on his behalf has been
examined. If he wants to reserve himself as a witness
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
and he proposes to examine himself after other
witnesses are examined, that is undoubtedly
permissible but he has to obtain previous permission of
the Court and the Court has undoubtedly the discretion
to grant such permission, but before that discretion is
exercised in favour of the party, the Court must record
reasons for permitting a party to examine himself after
the other witnesses are examined. ...”
(ii) AIR 1990 Madras 237 (Ayyasami Gounder and others vs.
T.S.Palanisami Gounder);
“6. .. .. When the provision contemplates the
obtaining of permission from that Court for the later
examination of a party as a witness, it is clear that such
permission should be applied for and sought prior to
the commencement of the evidence on the side of the
party no seeking permission, as the non-obtaining of
such permission at that stage would result in a breach
of O.XVIII, R. 3-A of the Code and to say that O.
XVIII, R.3-A of the Code could be resorted to even
after the examination of other witnesses on behalf of
the party to the suit, would be to render that provision a
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
dead-letter. The resort to O. XVIII, R.3-A of the Code,
after other witnesses are examined on behalf of a party
seeking permission for the examination of a party
thereafter, would defeat the very purpose of the rule
that the party should be examined first as a witness and
the other witnesses later. The requirement that the party
shall appear before any other witness on his behalf has
been examined, shows that in all cases, the party
should be examined first before the other witnesses and
only in very exceptional cases, subject to the grant of
permission by Court, he could be permitted to appear
as a witness at a later stage. .. ..”
(iii) 2008 (1) CTC 36 (Ravi and another vs. Ramar);
“20. .. .. 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
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
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.”
(iv) 2008 (6) CTC 229 (M.Kumar vs. S.Subbiah Kone and
Shiek Mohammad);
“18. As per the Division Bench of this Court, the
permission could be granted even at a later stage by the
Court, provided genuine reasons should have been
adduced in the affidavit for seeking the relief under
Order 18, Rule 3-A, CPC and the duty is cast on the
Court to record its reasons. It must be specifically
averred in the affidavit that for what reason, he could
not examine himself before the witness was examined
and the Court should get satisfied with the reasons and
the said satisfaction should be revealed in writing.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
.. ..
.. ..
25.Adverting to the allegations contained in the
affidavit filed by the first respondent, it is bereft of the
reasons as to the necessity of the first respondent to
examine the power of attorney before he was
examined. The only reason available thereon is that in
order to comply with the legal requirements, the
petition is being filed. But the trial Court has observed
in its order that since the plaintiff was ill, he had
authorised his power of attorney to file the suit and that
might be considered as a reason for filing this
application. The said observation is not at all
sustainable for the reason that at the time of trial what
has prevented the plaintiff from examining himself at
the first instance, has to be specifically pleaded him
and the same has to convince the Court also. The law
requires the Court to record its reasons for permitting
the party to examine himself at a later stage. Any
deviation in this regard shall render the permission
granted by the Court, an invalid one and the said order
would get vitiated in view of the absence of recording
proper reasons by the Court.”
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
(v) 2010 (6) CTC 716 (S.Ramachandra Reddy and another vs.
Natarajan and others);
“5. A reading of Order 18, Rule 3-A of CPC
would make it clear that where a party wishes to
examine any witness before examining himself he has
to obtain the permission of the Court. Such permission
can be sought for even after examining the witnesses as
held by the Division Bench of this Court in the
Judgement reported in the matter of Ravi & another vs.
Ramar, 2008 (1) Law Weekly 1055; and in the
Judgement reported in the matter of Chennimalai vs.
Alagulakshmi, 2008 (4) CTC 490, also the same
position has been reiterated. But without filing an
application, it is not open to the party to examine
himself after the examination of witnesses. Though in
this case no such application was filed, the Court below
dismissed the application for appointment of
Commissioner on the ground that a permission ought to
have been obtained before the commencement of the
examination of other witnesses on behalf of the party
for seeking permission. As stated supra, as per the
Division Bench of this Court in the Judgement reported
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
in 2008 (1) LW 1055, this Court has held as follows:
“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. ”
Therefore, what is necessary is to file an application for
permission and it is not necessary that such application
should be filed before the commencement of
examination of the witnesses.”
7.The learned counsel appearing for the 1st respondent contended
that D.W.1 is a representative of the 1st respondent partnership firm.
D.W.2 is the partner of 1st respondent and also 2nd defendant in the suit.
Order XVIII Rule 3-A of C.P.C. is directory in nature and leave can be
obtained subsequently also and prayed for dismissal of the Civil Revision
Petition. In support of his contentions, the learned counsel appearing for
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
the 1st respondent relied on paragraph 18 of the judgment reported in
2008 (6) CTC 229 (M.Kumar vs. S.Subbiah Kone and Shiek
Mohammad), which is relied on by the learned counsel appearing for the
petitioner. Further, he relied on the following order dated 06.11.2014
made in C.R.P.(PD)No.1597 of 2011 [Anusuya and another vs.
Roselin Mary]:
“5. .. .. However, this court feels that the ends of
justice can be met with by giving an opportunity to the
petitioners to seek permission by filing a petition under
Order 18 Rule 3A of CPC before the trial court, in
which event, the trial court shall consider and dispose
of the same and then proceed with the further trial of
the case.”
8.In reply to the arguments of the learned counsel appearing for the
1st respondent, the learned counsel for the petitioner submitted that if the
respondents file an application under Order XVIII Rule 3-A of C.P.C.,
liberty may be granted to the petitioner to file their objections and oppose
the same.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
9.Though notice has been served on the respondents 2 to 4 and
their names are printed in the cause list, there is no representation for
them either in person or through counsel.
10.Heard the learned counsel appearing for the petitioner as well
as the learned counsel appearing for the 1st respondent and perused the
entire materials available on record.
11.The issue to be decided in the present Civil Revision Petition is
whether the party to the suit is to be examined first as a witness before
any other party is examined as witness. As per Order XVIII Rule 3-A of
C.P.C., a party to be examined first before any other party witness. At the
same time, as per Order XVIII Rule 3-A of C.P.C., a party can obtain
permission to examine himself at later stage after first examining any
other party witness. The Courts have held that the provisions of Order
XVIII Rule 3-A of C.P.C. is directory in nature and not mandatory. In the
judgment relied on by the learned counsel appearing for the petitioner
reported in 2008 (1) CTC 36 cited supra, it has been held that even after
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
examining any other party, a party to the suit can file an application for
permission to examine himself after examining any other party as witness
at first. The Court must consider the averments in the affidavit and must
record reasons and the said reasons must be relevant. In the judgment
reported in 2010 (6) CTC 716 cited supra relied on by the learned
counsel for the petitioner, this Court after referring to the judgments
reported in 2008 (1) CTC 36 (Ravi and another vs. Ramar) and 2008
(4) CTC 490 (Chennimalai vs. Alagulakshmi) held that a party can
obtain leave subsequently also.
12.In view of the above, the impugned order of the learned Judge
is liable to be set aside and is hereby set aside. It is open to the
respondents to file application before the trial Court seeking permission
to examine the 2nd respondent as D.W.2 and it is open to the
petitioner/plaintiff to file objection. The learned Judge is directed to
consider the averments in the affidavit, counter affidavit made in the
application and pass orders on merits and in accordance with law.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
13.With the above directions, the Civil Revision Petition is
disposed of. No costs.
22.10.2021
Index : Yes/No
Internet: Yes/No
kj
To
I Additional Judge
District Court, Coimbatore.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.3412 of 2017
V.M.VELUMANI,J.
Kj
C.R.P.(PD)No.3412 of 2017
22.10.2021
https://www.mhc.tn.gov.in/judis/
