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Bholanath Mondal and ors. Vs. Kalipada Mondal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 473 of 1981
Judge
Reported inAIR1981Cal295
ActsCode of Civil Procedure (CPC) , 1908 - Order 18, Rule 3A
AppellantBholanath Mondal and ors.
RespondentKalipada Mondal
Appellant AdvocateAlok N. Biswas, Adv.
Respondent AdvocateBidyut K. Banerjee, Adv.
Cases ReferredK. Venkataramiah v. A. Seetharama Reddy
Excerpt:
- .....an application under order 18, k. 3a for permission of the court to appear as a witness at a later stage. on 28-1-1981 the petitioners filed an application under order 18, rule 3a stating that the petitioners would be prejudiced if the opposite party is allowed to appear as a witness at a later stage, when he got the copies of depositions made by his witnesses. thereafter on the same date the opposite party came up with an application under order 18, rule 3a on the plea that he had obtained verbal permission on 14-1-81 but no formal application was filed through mistake. but no such application was filed even on 17-1-81, the adjourned date of hearing.3. by the impugned orders the learned munsif rejected the application filed by the petitioner and allowed that of the opposite party.....
Judgment:
ORDER

Sudhindra Mohan Guha, J.

1. The present application for revision arises out of orders dated 28-1-1981 passed by Sri T. K. Paladhi, Munsif, 3rd Court, Burdwan in Title Suits Nos. 103 of 1975 and 26 of 1977 heard analogously.

2. T. S. No. 103 of 1975 was instituted by the petitioners against the opposite party for eviction on declaration of their title and other reliefs whereas T. S. No. 26 of 1977 was filed by opposite party against the petitioners for declaration of his title and other reliefs. Both the suits were taken up for hearing and the petitioners closed their evidence. On 14-1-81 the opposite party examined certain witnesses without examining himself on filing an application under Order 18, K. 3A for permission of the Court to appear as a witness at a later stage. On 28-1-1981 the petitioners filed an application under Order 18, Rule 3A stating that the petitioners would be prejudiced if the opposite party is allowed to appear as a witness at a later stage, when he got the copies of depositions made by his witnesses. Thereafter on the same date the opposite party came up with an application under Order 18, Rule 3A on the plea that he had obtained verbal permission on 14-1-81 but no formal application was filed through mistake. But no such application was filed even on 17-1-81, the adjourned date of hearing.

3. By the impugned orders the learned Munsif rejected the application filed by the petitioner and allowed that of the opposite party permitting him to depose holding that oral permission had been granted earlier.

4. It transpires from record that on 17-1-81 the petitioner filed an application to the effect that the defendant was to examine himself first, before closing of the evidence of D.W. 3 who was being examined on commission. That prayer was allowed; and on the next day, that is on 18-1-81 the defendant opposite party sought permission of the Court to examine himself by a regular application.

5. It is contended by Mr. Biswas that the Court had no jurisdiction to allow the opposite party to examine himself as a witness after examination of several witnesses on his behalf and the impugned order was contrary to the provisions of Order 18, Rule 3A of the C.P.C. Mr. Biswas argues that in order to avoid harassment by a manoeuvre or tact of a party Law Commission recommended amendment of the C. P. C. 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. Fifty-fourth Report of the Law Commission contains the following recommendations:-- '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'. So insertion of Rule 3A in Order 18 was recommended.

6. It is thus contended by Mr. Biswas that the intention of the Legislature in accepting the recommendation of the Law Commission was to make it mandatory. He lays stress on the word 'shall', which in the absence of anything else to construe otherwise is mandatory. According to him permission must be obtained from the Court before examining any witness on behalf of a party and not after violating the provision, because in that case the other party would be put to harassment and thus frustrating the very purpose of introduction of the provision. In support of his contentions he relies on the single Bench decision in the case of Jagannath Nayak v. Laxminarayan Tha-kur, reported in AIR 1978 Orissa 1, wherein it is held that permission of the Court must be sought for at the time when the party is to commence leading his evidence and not after violating the provision. Reference is also made to page 137 in Chapter VI of Maxwell on The Interpretation of Statutes, 12th Edition in order to understand how a statute is to be interpreted to prevent evasion or abuse. The Court has been asked not to be astute to narrow the language of a statute so as to allow persons within its purview to escape its net. 'The office of the Judge is, to make such constructions as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief'. Mr. Banerjee points out at . the outset that the decision reported in AIR 1978 Orissa 1 relied on by Mr. Biswas was overruled by a decision of the Division Bench in the case of Maguni Dei v.Gouranga Sahu, reported in AIR 1978 Orissa 228. It is held therein that Rule 3A of Order 18 is of directory nature. In proper cases the court has got power to examine a party at a later stage even though he has not obtained the Court's previous permission as provided in the rule. If a party has acted in good faith and it is just and fair to permit him 'to examine himself at a later stage, the Court is not absolutely helpless in the matter. The use of the word 'shall' in a statutory provision, though generally taken in a mandatory sense, does not always conclusively convey an imperative mandate. A Division Bench of the Punjab and Haryana High Court in the case of Kwality Restaurant, Amritsar v. Satindra Khanna, reported in was exactly of the same view. According to their Lordships no specific stage is prescribed or fixed by the statute for securing such permission. A party may perhaps as a matter of abundant caution apply at the stage of commencing his evidence and get the necessary permission and equally, if sufficient ground is made out he may secure such permission at a later stage.

7. Mr, Banerjee in order to explain the meaning of the word 'shall' in Rule 3A refers to Order XLI, Rule 27, wherein it is provided that parties to appeal shall not be entitled to produce additional evidence, unless the provisions in (a), (aa) and (b) are satisfied. While interpreting the word 'shall' in Order XLI, Rule 27 the Supreme Court in the case of K. Venkataramiah v. A. Seetharama Reddy, reported in : [1965]56ITR20(SC) observes that the omission to record the reason must, therefore, be treated as a serious defect. Even so, the provision is not mandatory and the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission. It is true, that the word 'shall' is used in Rule 27 (2), but that by itself does not make it mandatory,

8. Mr. Banerjee argues that the learned Munsif failing to record reasons for permitting the opposite party on 14-1-81 might have committed an error--but that does not vitiate the entire trial The word 'shall' in Order 18, Rule 3A is to be interpreted as 'may', as the provision is not mandatory. On a reading of Rule 3A it would appear that as a general rule a party is to examine himself---before examination of any other witness on his behalf. But this general rule can always be excepted by the Court by way of . permitting the party, for reasons to berecorded, to appear at a later stage. No time limit has been imposed for seeking such permission. With due respect to their Lordships of the Orissa High Court and Punjab and Haryana High Court I am fully in agreement with their views that it is within the discretion of the Court to allow a party to appear as a witness at a later stage of the hearing for reasons to be recorded. This very power of the Court does away with the 'imperative mandate', and thereby conveying the meaning of 'shall' as 'may'. It should be remembered that the provision of Order 18, Rule 3A lays down certain procedure but there is no penal provision for its non-compliance or non-observance. In this connection I may quote a passage from page 231 of the report of the case reported in AIR 1978 Orissa 228.

'A directory provision is generally affirmative in its terms. But negative words are ordinarily used as a legislative device to make a statute imperative. If the requirements of a statute which prescribes the manner in which something has to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in a particular and specified manner and in no other, then those requirements are in all cases absolute and the neglect to obey or fulfil them exactly will invalidate the whole proceedings. (See Craies on Statute Law 5th Edition p. 243). The provision of Order 18, Rule 3A is couched in affirmative terms. It prescribes a certain procedure, but imposes no penalty for its non-observance. The rule itself provides an exception and gives discretion to the Court to permit the examination of a party at a later stage for reasons to be recorded by it..... The paramount consideration of the judicial process being the doing of justice to the parties, the Court can examine a party at a later stage if it considers the evidence essential despite some negligence on the part of a party.'

9. The law on the point to my mind, has been clearly interpreted by their Lordships, and I am fully in agreement with them.

10. Thus, I hold that it was not incumbent on the opposite party to seek permission of the Court to examine himself before examination of his witnesses, at the initial stage of the hearing. The power being discretionary, can be exercised by the Court at a subsequent stage, for reasons to be recorded.

11. In this view of the matter, the application for revision fails and the rule is discharged,

12. Each party to pay and bear its own costs.


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