S.S. Shinde, J.@mdashRule. Rule made returnable forthwith. Heard finally with the consent of the parties. This writ petition takes exception to the judgment and order passed by the 2nd Joint Civil Judge, Junior Division, Dhule below Exhibit-48 in Regular Civil Suit No. 35 of 2010 on 2nd January, 2012.
2. The petitioners herein are the original defendants and the respondents herein are the original plaintiffs. The respondents herein filed Regular Civil Suit No. 35 of 2010 in which the petitioners herein appeared after receipt of the summons and resisted the suit by filing written statement. The issues were framed on 8th August, 2011 by the trial Court.
3. The plaintiffs stepped into witness box, and examination and also cross examination of the plaintiffs was completed.
4. It is the case of the petitioners that, original defendants are old aged persons and also not keeping good health. Defendant No. 1 is a lady, who is the owner of the property and defendant No. 2 is her husband. It is the case of the petitioners that, they are residents of small village and proceedings are going on at Dhule. It is neither possible nor convenient for the defendants to appear before the Court personally. It is further case of the petitioners that, their son Gopichand is cultivating their land, as it is not possible for the defendants to cultivate the land due to old age and sickness. In the aforesaid factual scenario, the petitioners filed application at Exhibit-48 seeking permission of the trial Court to adduce evidence of their son Gopichand before they stepped in the witness box. It is mentioned in the application that, the petitioners i.e. defendants are old and sick persons and moreover, their son Gopichand, who is cultivating the land has personal knowledge of the facts of the case.
Along with the application, claim affidavit of the witness Gopinath was also tendered.
5. It is the case of the petitioners that, original plaintiffs filed two lines say to the application at Exhibit-48. It was mentioned that, the application is illegal and that application seeking permission is not filed. Sickness and old age of the defendant was never disputed by the plaintiffs, however, the trial Court by order dated 2nd January, 2012 rejected the application at Exhibit-48 filed on behalf of the present petitioners. While rejecting the said application, the trial Court held that, no evidence is tendered in support of the contention about old age and ill health.
6. Learned Counsel appearing for the petitioners submits that, illness and sickness of both the defendants is not specifically denied by the plaintiffs and hence, there is no need to adduce independent evidence in respect of facts which are not denied by the other side. It is submitted that, the trial Court has lost sight of the fact that, the facts not denied specifically and deemed to be admitted and admitted facts need not be proved. It is submitted that, the trial Court should have appreciated that, there is no burden on the defendants to prove any of the issues and hence, no prejudice will be caused to the plaintiffs, in case the evidence of other witness is recorded prior to the evidence of the defendants. It is submitted that, the trial Court has lost sight of the fact that, it is pleaded in the application itself that even witness has personal knowledge of the case and that, he is cultivating the land and he is son of the defendants. Under such situation, there is no harm or prejudice to the plaintiffs in case permission as sought is granted. It is submitted that, the provisions of Order 18 Rule 3A of the CPC are only directory in nature and same are not mandatory. The application of the Rule 3A of Order 18 of the CPC will come into picture when the party himself enters the witness box. It is submitted that, reference to the provisions of Order 18 Rule 3 of the CPC is not appropriate in the present case and the trial Court was not correct in relying upon the said provision. Learned Counsel appearing for the petitioners in support of his contention that, provisions of Order 18 Rule 3A of the CPC are not mandatory in nature, pressed into service reported judgment of this Court in the case of Shah Industries and another vs. Vadhani Industrial Estate [2009 (2) Bom. C.R. 736] and in particular paragraph-2 of the said judgment and submitted that, the object and purpose of Order 18, Rule 3-A of CPC cannot be interpreted to restrict the rights of the parties to lead evidence of his witnesses. Therefore, the Counsel for the petitioners prayed for allowing the writ petition.
7. On the other hand, learned Counsel appearing for the respondents submits that, sufficient reasons are assigned by the trial Court while rejecting the application filed by the defendants, therefore, this Court may not interfere in the impugned order. It is submitted that, though it was stated in the application that, defendants Devakibai and her husband are having old age and ill health and therefore, they are unable to attend the Court, however, no any documentary evidence was produced on record to demonstrate that, the defendants are old aged persons and not keeping good health. Learned Counsel appearing for the respondents, therefore, prays that, this writ petition may be dismissed.
8. I have given due consideration to the rival submissions. Perused the pleadings in the petition, annexures thereto, impugned order passed by the trial Court and the judgments of this Court cited by the Counsel for the parties and I am of the opinion that, the impugned order deserves to be set aside by restoring an application at Exhibit-48, to its original file for fresh decision, for the reasons set out herein below.
9. At the out set, it will be apposite to reproduce here in below the provisions of Rule 3A of Order 18 of the Code of Civil Procedure, which reads thus:
3-A. Party to appear before other witnesses.-Where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.
10. This Court had occasion to interpret provisions of Order 18 Rule 3A of the CPC in the case of Shah Industries and another (supra). This Court in paragraph Nos. 2 and 3 of the said judgment held thus:
2. The object and purpose of Order 18, Rule 3-A cannot be interpreted to restrict the rights of the parties to lead evidence of his witnesses. This provision is directory. In a given case Court may pass appropriate order.
3. After examining the other witnesses especially when plaintiffs or party desire and wants to lead the evidence to support of his case. There is no total prohibition or a bar that Court should not grant such permission. On the contrary, it is desirable that full opportunity should be given to the parties to the proceedings to put their evidence at the earliest possible stage.
11. Yet, in another case of
14. With the above dissection of Rule 1, if one has to understand the legislative intend behind Rule 3A of the said Order 18, which was introduced by the Act 104 of 1976 into Civil Procedure Code, it is necessary to look into the recommendations of the Law Commission. In the 54th report with an intention to prevent the notorious practice indulged in by litigants in examining other witnesses first and later covering up the gaps by the examination of the parties themselves later, to substantiate their case, the Law Commission recommended introduction of Rule 3-A in Order 18 of Civil Procedure Code. If that is the mischief sought to be remedied by the amended Rule 3-A of Order 18 of Civil Procedure Code, the order of the examination of such of the defendants who wish to examine themselves as witnesses in support of their defence cannot be left to the choice of the plaintiff. Rule 3-A of Order 18 is directory in nature and the only mandatory provision it incorporates is to the extent of obtaining permission of the Court. The normal rule laid down is that the party wanting to examine himself should examine first before any witness is examined. This rule can be deviated only with the permission of the Court. Such permission of the Court, it is desirable, should be obtained before any witness is examined, but such is not the mandate. Such permission can be obtained even at a later stage.
(Underlines supplied).
12. Therefore, upon careful reading of decision in the case of Shah Industries and another (supra) and Kumudini Damodar Magar and others (supra), it is abundantly clear that, the provisions of Order 18 Rule 3A of the CPC are directory in nature.
13. In the facts of the present case, it is true that, no any evidence was placed on record by the present petitioners to show that, they are old aged persons and not keeping good health. The contentions of the Counsel for the petitioners that, the plaintiffs have not specifically denied that the, petitioners are not aged persons or not keeping good health and therefore, their application should have been allowed, cannot be accepted. The original plaintiffs, respondents herein have stated in their reply that, the application is not supported by the pleadings or document. It necessarily means that, an application filed by the original defendants seeking permission to examine their son Gopinath before the defendants examined themselves, on the ground that, they are old aged persons and not keeping good health, was not supported by any documentary evidence. It is the case of the petitioners themselves that, they are old aged persons and not keeping good health and therefore, it was for the petitioners i.e. original defendants, to place on record some documentary evidence showing that, they are not keeping good health. In absence of such evidence on record, in my opinion, the trial Court was justified in observing that, the documentary evidence is not placed on record by the defendants to support the averments in the application below Exhibit-48, however, the trial Court should have kept in mind that, the provisions of Order 18 Rule 3A of the CPC are not mandatory and those are directory in nature. In appropriate cases like the case in hand, if the defendants are able to place on record that, they are not keeping good health, in that case, the trial Court can consider the prayer of the defendants that, their son Gopichand should be allowed to examine first before the defendants are examined. Therefore, the ends of justice would meet, if the impugned order is quashed and set aside and the application at Exhibit-48 is restored to its original file for fresh adjudication. In the light of above, following order is passed.
:ORDER:
(1) The impugned order dated 2nd January, 2012 below Exhibit-48 in Regular Civil Suit No. 35 of 2010 passed by the 2nd Joint Civil Judge, Junior Division, Dhule is quashed and set aside.
(2) The petitioners i.e. original defendants to place on record the documentary evidence about their ill health.
(3) The application at Exhibit-48 is restored to its original file.
(4) The 2nd Joint Civil Judge, Junior Division, Dhule is directed to hear the application at Exhibit-48 afresh in the light of discussion in the judgment herein above, and decide the same on its own merits, as expeditiously as possible, however, within one month from the receipt of copy of this order.
(5) Rule made absolute on above terms. The writ petition stands disposed of.
