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Malod Transport Company Vs. Memon Jikarbhai Daudbhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR320
AppellantMalod Transport Company
RespondentMemon Jikarbhai Daudbhai
Cases ReferredMaguni Dei v. Gauranga Sahu
Excerpt:
.....raises an interesting question regarding the interpretation of rule 3-a of order 18 of the code of civil procedure, 1908, which was introduced on the statute book by code of civil procedure (amendment) act, 1976 (no. this request was resisted by the petitioner-defendant on the ground that the defence was clearly stated in the written statement and that it would prejudice his case if the plaintiff is now allowed to enter the witness box to give evidence. in support of this contention he places strong reliance on the decision of s. the fourteenth report has recommended that, ordinarily, a party who wishes to be examined as a witness should offer himself tirst, before the other witnesses are examined. the fourteenth report had recommended that ordinarily, a party who wishes to be..........as a witness, he must step in before any other witness on his behalf is examined. this is a rule of procedure and as observed by the supreme court in state of punjab v. shamlal murari (1976) i.s.c.c. 719, such a rule of procedure should be construed liberally so as to advance the cause of justice. say their lordships:we must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. it has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. where the non-compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. but, grammer apart, if the breach can be corrected.....
Judgment:

A.M. Ahmadi, J.

1. This Revision Application by the original defendant of Suit No. 17 of 1977 pending in the Court of the learned Civil Judge (Junior Division), Surendranagar, raises an interesting question regarding the interpretation of Rule 3-A of Order 18 of the Code of Civil Procedure, 1908, which was introduced on the statute book by Code of Civil Procedure (Amendment) Act, 1976 (No. 104 of 1976) and which reads as under:

3A. Where a party himself wishes to appears 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.

The facts in the context of which the aforesaid newly introduced Rule 3-A of Order 18 of the Code is required to be construed are as under.

2. The opponent-plaintiff filed a Suit No. 17 of 1977 for possession of the premises in the occupation of the petitioner-defendant, inter alia, on the ground of arrears of rent, after serving him with a notice to quit. On the service of the summons of the said suit, the defendant entered an appearance and filed a written statement contesting the suit. The allegation that he was a tenant in arrears and was not ready and willing to pay the standard rent in respect of the demised premises was countered by alleging that on receipt of the notice he met the plaintiff personally and offered the rent to him but the plaintiff directed him to his father who was in management of the property. Thereupon he met the plaintiff's father and offered the rent to him but he was told not to worry about the notice. The rent though offered was not accepted from him. The petitioner-defendant, therefore, contended in his written statement to the suit that he was throughout ready and willing to pay the rent in respect of the demised premises and was therefore not a tenant in arrears liable to be evicted from the premises. When the said suit came up the hearing before the learned trial Judge on 9th August 1979, the plaintiff's father entered the witness-box and gave evidence on behalf of the plaintiff. He was cross-examined by the learned advocate appearing on behalf of the defendant. Thereafter the matter was adjourned to 24th August 1979 on which date the plaintiff gave an application, Exhibit 48, seeking leave of the Court to examine himself as a witness in the said suit under Rule 3-A of Order 18 of the Code of Civil Procedure. This request was resisted by the petitioner-defendant on the ground that the defence was clearly stated in the written statement and that it would prejudice his case if the plaintiff is now allowed to enter the witness box to give evidence. The learned trial Judge considered these objections and relying on a decision of the Orissa High Court in Parmananda v. Labanya Bewa : AIR1979Ori132 , granted the plaintiff's request on payment of Rs. 30/- by way of costs, it is against this order of 7th September 1979 that the petitioner-defendant has preferred the present Revision Application.

3. Mr. Joshi, the learned advocate for the petitioner-defendant, submits that the provision of Rule 3-A of Order 18 of the Code of Civil Procedure is mandatory and the Court has no jurisdiction to permit examination of the plaintiff at a subsequent stage if permission of the Court is not obtained at the commencement of the evidence on behalf of the plaintiff. In support of this contention he places strong reliance on the decision of S.K. Ray, J; in Jagannath v. Laxminarayana : AIR1978Ori1 . The view taken by the learned Single Judge in the said case fully supports the contention of Mr. Joshi. Mr. Joshi, therefore, strenuously urged before me that the provision of Rule 3-A being mandatory, if the party fails to strictly comply therewith, he forfeits his right to examine himself as a witness at a subsequent stage and the Court also loses its jurisdiction to grant the permission which it could have granted had it been sought before the commencement of evidence on his behalf at the trial.

4. Before, I proceed to deal with the language of Rule 3-A of Order 18 of the Code, it will be advantageous to bear in mind the legislative history leading to the incorporation of this provision on the statute book by the Amendment Act of 1976. The Fourteenth Report of the Law Commission, para 71 at page 340, contains the following recommendation in respect of Order 18:

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 R 2 or R 3 of Order XVIII of the Code of Civil Procedure be suitably amended so as to embody such a provision.

However, in the Twenty-seventh Report of the Law Commission, at page 170, this recommendation was sought to be bypassed in the following words:

The Fourteenth Report has recommended that, ordinarily, a party who wishes to be examined as a witness should offer himself tirst, 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 docs not seem to be desirable.

In the Fifty-fourth Report, at page 160, both these earlier recommendations were considered and it was observed;

We shall first refer to an important point regarding examination of the parties. The matter was considered in the earlier report, but, as we take a different view, we propose to discuss it again.

The Fourteenth Report had recommended that ordinarily, a party who wishes to be examined as a witness should offer himself first, before, the other witnesses are examined. The Commission, in its Report on the Code, however, considered it unnecessary to make any such statutory provision. It noted that this should be the ordinary rule, but though that a rigid provision on the subject would not be desirable.

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.

The provision which came to be recommended by the Law Commission in its Fifty-fourth Report was brought on the statute book world for word by the Amendment Act of 1976. Thus Rule 3-A of Order 18 of the Code of Civil Procedure was brought on the statute book after considerable deliberation as can be seen from the recommendations made in the aforesaid three Reports of the Law Commission. There can, therefore, be little doubt that the Commission felt that the ordinary rule should be that a party to a litigation should enter the witness box to give evidence before any other witness is examined on its behalf, but at the same time it was realised that a rigid implementation of this ordinary rule may lead to hardship in certain cases. The Law Commission, however, felt that as the rule was to confine itself to ordinary cases, the hardship arising from special features of the case should not pose any problem. While making this observation the Commission perhaps had in mind the discretion given to Courts under the proposed amendment.

5. Rule 3-A of Order 18 of the Code of Civil Procedure lays down the ordinary rule that when a party wishes to examine himself as a witness, he must step in before any other witness on his behalf is examined. This is a rule of procedure and as observed by the Supreme Court in State of Punjab v. Shamlal Murari (1976) I.S.C.C. 719, such a rule of procedure should be construed liberally so as to advance the cause of justice. Say Their Lordships:

We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammer apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. All in all, courts are to do justice, not to wreck this end product on technicalities.

Viewed in this perspective, can be said that the use of the word 'shall' in Rule 3-A of Order 18 of the Code of Civil Procedure is mandatory? There can be little doubt that the second part of the said rule is discretionary and entitles the Court to permit a party to appear as his own witness at a later stage. The question which arises for consideration is, whether such permission must be obtained from the Court before examining any witness on his behalf and whether failure to do so would debar the party from entering the witness box altogether. In other words, if a party does not enter the witness-box without the express permission of the Court, has the Court no jurisdiction to permit him to give evidence at a subsequent stage, event if the Court is satisfied that there existed valid reasons for the party not having entered the witness box at an earlier point of time? If such a rigid view is taken it would undoubtedly cause hardship in certain cases where a party at the initial stage honestly believes that it is not necessary for him to give evidence but subsequent developments in the suit in the course of the recording of evidence makes it imperative for him to give evidence on oath or fail in the cause. In such a case, if the Court has no discretion to allow the party to enter the witness-box and give evidence merely because the permission of the Court was not obtained in advance under Rule 3-A of order 18 of the Code of Civil Procedure, there can be no doubt that there would be a failure of justice. It is in this context that the question whether the said Rule is mandatory or directory must be constructed.

6. Generally the use of the word 'shall' cannotes that the provision is intended to be imperative but it is not decisive of the question. No universal rule can be laid down for determining whether a certain provision is mandatory or directory and each provision will have to be construed bearing in mind the context in which the expression 'shall' is used and the object to be achieved by the said provision. As observed by the Supreme Court in In re. presidential Elextion, 1974 A.I.R. 1974 S.C. 1682, in determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the Courts to get at the real intention of the Legislature in determining whether the use of the word 'shall' which ordinarily cannotes that the provision is intended to be mandatory was in fact so intended. It is on this settled legal rule of construction that the Supreme Court in Shamlal Murari's case, (supra) observed as under:

The use of 'shall'-a word of slippery semantics-in a rule is not decisive and the context of the statute, the purpose of the prescription, the public injury in the event of neglect of the rule and the conspectus of circumstances bearing on the importance of the condition have all to be considered before condemning a violation as fatal.

7. Turning now to the language of Rule 3-A of Order 18 of the Code of Civil Procedure, we find that the intention of the legislature in incorporating this new provision is to emphasize that ordinarily a party who wishes to appear as a witness in his case should enter the witness box before any other witness on his behalf is examined unless the Court, for reasons to be recorded, permits him to appears as his own witness at a later stage. The ordinary rule that the party desiring to appear as a witness should enter the witness box before any other witness on his behalf is examined has been incorporated in the first part of the newly added provision. The second part thereof lays down that a party not desiring to adhere to this normal rule may appear as a witness at a later stage in the proceedings with the permission of the Court. The Court while giving this permission must record its reasons in support thereof. It is, therefore, obvious that what the legislature desired was to emphasize the normal rule that the party desiring to examine himself as a witness should enter the witness box before his other witnesses take the witness stand but it did not intend to shut out subsequent examination of the party altogether, for if such was the intention it would have provided in clear terms that a party which fails to enter the witness box before his other witnesses are examined shall be debarred from giving evidence in that cause. If the legislature intended the rule to be mandatory, that is to say, if it intended failure to obtain prior permission to be fatal, it would certainly have provided the penalty for non-compliance. The rule does not provide a penalty which is indicative of the rule being directory.

8. The Law Commission while recommending the incorporation of this rule on the statute book in its Fifty-fourth Report reproduced earlier was aware that a rigid adherence to the ordinary rule would cause hardship and, perhaps, failure of justice in a given case. It is for this reason that it observed that 'since the proposed rule will be confined to ordinary cases, the hardships, arising from special features of the case, should not present any problem'. In making this observation, the Law Commission had in mind the discretion that was being vested in the Court to permit examination of a party at a subsequent stage for reasons to be recorded in writing. What was sought to be achieved by the incorporation of this rule was that ordinarily a party desiring to examine himself as a witness should step into the witness box first before his other witnesses are examined. The intention clearly was to curb the rampant malpractice which prevailed as there was no provision in the Code empowering Courts to refuse to record the evidence of a dishonest litigant who deliberately did not examine himself at the proper stage and came forward to give evidence at the last moment, thereby taking the opposite party by surprise. By the present amendment discretion is vested in Courts to refuse permission to such a dishonest litigant to enter the witness box at a late stage and thereby cause prejudice to the other side. Whether a Court will give permission or not would depend on the facts and circumstances of each case. Broadly speaking the test would be two fold, viz., (i) whether the litigant did not examine himself at the proper stage out of dishonest or ulterior motives; and (ii) whether any prejudice is likely to be caused to the other side if permission is given at that belated stage. The intention of the legislature could not be to penalise honest litigants. It is not difficult to conceive of cases where a party which initially did not think it necessary to enter the witness box to give evidence in his own case found it necessary to do so at a subsequent stage of the proceedings as a result of certain developments which took place during the trial. Suppose a litigent honestly believes that having regard to the nature of pleadings it is not necessary to examine himself as a witness at the trial. However, it transpires from the questions put to his witness in cross-examination that he must enter the witness box, deny those suggestions and face cross-examination. Could it be said that Rule 3-A of Order 18 of the Code was enacted to debar such a litigant from entering the witness box merely because he did not examine himself first? In that case there would be a failure of justice which could never have been intended by the legislature. It must be borne in mind that the rules of procedure are intended to advance the cause of justice and not to defeat it. If the cause of justice so demands, subject to the test stated earlier, Courts should exercise their discretion in favour of permitting evidence rather than blocking it. A rigid interpretation of Rule 3-A would debar the party to the suit from tendering evidence in support of his cause merely because at an earlier stage, he failed to seek the permission of the Court to stay away from the witness box. A strict and rigid adherence to the rule as urged by Mr. Joshi could never have been intended by the legislature as it would in a given case result in failure of justice. Rulers of procedure are framed to subserve the cause of justice and not to act as rod blocks. I am, therefore, of the opinion that on a proper construction of Rule 3-A of Order 18 of the Code it is clear that the legislature intended it to be directory and Courts have therefore been invested with power to permit examination of a party at a subsequent stage even if he had failed to obtain the Court's permission in advance, provided it has acted in good faith and his examination is not intended to cause prejudice to the opposite party.

The decision of S.K. Ray, J., in Jagnnath v. Laxminarayan, (supra) wherein the learned Judge held the said rule to be mandatory and expected strict compliance was overruled by a Division Bench of that Court in Maguni Dei v. Gauranga Sahu 0065/1978 : AIR1978Ori228 . After considering the legislative history and various decisions of the Supreme Court the Division Bench came to the conclusion that the view expressed by the learned Single Judge in the aforementioned case did not correctly lay down the law on the subject. It emphasized that if a party had acted in good faith and the Court considered it just and fair to permit him to examine himself at a later stage, the Court was not absolutely helpless in the matter and it could certainly record the evidence of such a party. This view of the Division Benchy was relied upon by Acharya J., in Permancmda's case (supra) on which the learned trial Judge has placed reliance. I am in respectful agreement with the view expressed by the Division Bench of the Orissa High Court on the true interpretation of Rule 3-A of Order 18 of the Code of Civil Procedure. I am, therefore, of the opinion that the learned trial Judge was right in permitting the plaintiff to enter the witness-box at a subsequent stage for reasons stated in his application which were not controverted.

In the result, therefore, this Revision Application fails and is dismissed. Rule discharged. There shall, however, be no order as to costs.


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