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Srinivas (Director)     10 August 2013

Order 18 rule 3a

Gurus,

I have a question on interpretation of O18 R3A.

If defendant witness is examined first as DW1.  Later defendant examines herself as DW2. This was done without any application to the court but was allowed by the court.

Does this mean evidence let in by defendant (DW2) is invalid?

Is there specific case law to show DW2 evidence should be allowed?

 

thanks,



Learning

 5 Replies

surjit singh (Assistant)     10 August 2013

There are SC judgemnet on this which says that the purpose of this section is to see that the lacuna created by the witnesses of the respective parties are not allowed to be filled in by the deposition of parties at the later stage. But the SC does not says that the deposition of parties made after the depositon of the other witnesses will be invalied. One thing is emboded in the provison of the Order 18 Rule 3A  that if lthe parties himself wants to depose as witnesses at a later stage then in that case he should take leave of the Court.

I have have also gone through this same problem where the  plaintiff deposed as witnesses after deposition of two of his witnesses (i.e. PW3), where the court also did not objected to it nor the other side objected to it. I am also in delima whether the two depositon made before the plaitiff as PW1 and PW2 will be considerd by the court or not.

Srinivas (Director)     10 August 2013

Dear Surjit Singh,

 

I believe the plaintiff or defendant has the right to *not* let his evidence in. In such a case, 

it is legal to have both plaintiff witness be examined before the plaintiff. I think the real 

question (for both you and I) is if O18R3A bars examination of the party after their witness.

In my case also there was no objection raised while the evidence of the party was let in but

in an appeal the evidence has been challenged stating evidence of DW2 must be expunged.

 

I ran into the below case law for reference:

In Pravesh Kumar v. Rishi Prasad, , the Division Bench while observing that the provision of Order 18, Rule

3A of the Code is directory held :

 

 

"Order 18, Rule 3A is directory and not mandatory. But that does not mean that Rule 3A need not be observed. It must be observed. But its non-observance in all cases should not lead to the extreme penalty of expunging the evidence which had already been recorded. Therefore, where the plaintiff without obtaining leave of the Court under Rule 3A was examined as a witness at a later stage after the witnesses on his behalf had already been examined and deposed in support of his case and proved number of documents, his evidence along with the exhibits which he had proved should not be expunged for non-observance of Rule 3A."

 

 

best regards,

 

Srinivas

surjit singh (Assistant)     12 August 2013

You see so long the depositon of the parties who comes as witnesses at a later stagedoes not fills a big gap of lacuna created by his other witnesses there is nothing to worry. Thanks for your citation.

Srinivas (Director)     12 August 2013

Dear Surjit Singh,

I could not find the original judgment. I found another judgment with reference. If you find the original judgment please

attach a copy. I am attaching the AP judgment that references the citation.

Andhra High Court

Bonthu Venkataramana vs Patrevu Samba Murthy And Ors. on 26 March, 2004

 

Equivalent citations: 2004 (3) ALD 753, 2004 (4) ALT 230

 

regards,


Attached File : 953111006 bonthu venkataramana vs patrevu samba murthy and ors. on 26 march, 2004.pdf downloaded: 283 times

surjit singh (Assistant)     12 August 2013

 
I think I found the judgement, it is a judgment of PATNA HIGH COURT
 
 
Patna High Court
Pravesh Kumari And Ors. vs Rishi Prasad And Ors. on 19 August, 1985
Equivalent citations: AIR 1986 Pat 315, 1986 (34) BLJR 221
Author: S A Ahmad
Bench: S Sandhawalia, S A Ahmad

JUDGMENT

S. Ali Ahmad, J.

1. The plaintiff-appellants filed a suit for declaration of title with respect to the suit property and that the defendants have no right and title over the same. The defendants filed written statement denying the claim of the plaintiff-appellants. In view of the order that I intend to pass, it is not necessary to mention facts in any detail. All that need be said is that the plaintiff was examined as P.W. 13 after 12 witnesses on his behalf had already been examined. It further appears that the plaintiff had not taken leave to appear at a later stage as provided under Order XVIII, Rule 3A of the CPC. While appearing as a witness, the plaintiff deposed in support of his case and proved number of documents, including Chowkidari receipts, Exts. 2/A to 2/E. Before the trial Court, a point was raised as to whether the evidence of the plaintiff, who was examined as P.W. 13 carried any weight. The trial Court framed an issue which reads as follows : --

"Whether the evidence of the plaintiff as P.W. 13 carries any weight in view of the mandatory provision of Rule 3A of Order XVIII of the C.P.C."

The trial Court on the basis of the decision reported in 1978 BLJR 600 held that Rule 3A of Order XVIII of the Code of Civil Procedure was mandatory. It, therefore, held that the evidence of P.W. 13 carried no weight and, therefore, it directed the same to be expunged from the evidence. The trial Court, however, after expunging the evidence looked to the other evidence on record, including the exhibits that were proved by P.W. 13. According to the trial Court, the evidence on record proved the case of the plaintiff and, therefore, it decreed the suit.

2. The defendants filed an appeal. The lower appellate Court agreed with the view taken by the trial Court that the provision of Rule 3A of Order XVIII of the CPC was mandatory. It also held that when the evidence of P.W. 13 had been expunged then the exhibits which were proved by P.W. 13 also had to go out of record as they could not be deemed to have been lawfully exhibited. After doing so, the lower appellate court came to the conclusion that there was no evidence on record to support the case of the plaintiff. It therefore, allowed the appeal and set aside the judgment passed by the trial Court.

3. The only point that has been urged before us is that the view taken by the courts below that the provisions of Rule 3A of Order XVIII of the Code of Civil Procedure are mandatory is erroneous. Learned counsel in support of his contention has referred to the Bench decision in the case of Rameshwar Sharma v. Surju Prasad, 1979 BBCJ (HC) 637 wherein it has been held that the provision is directory and that the case reported in 1978 BLJR 600 was wrongly decided. In view of the aforesaid Bench decision, there is no difficulty in accepting the argument of learned counsel. Plaintiff No. 2 was examined as P.W. 13 and had proved the documents. His evidence along with exhibits which he had proved should not have been expunged from the record. I may, however, hasten to add here that I should not be understood to mean that because Rule 3A of Order XVIII of the CPC is directory in nature, therefore, the same need not be observed. It must be observed. But its non-observance in all cases should not lead to the extreme penalty of expunging the evidence which has already been recorded.

4. Since I have held that the evidence of P.W. 13 along with the exhibits that he proved will have to be considered, the only course left open now is to allow the appeal and remit the same to the lower appellate court for a fresh decision in accordance with law. Since no one has appeared to oppose the appeal, I would make no order as to costs.

S.S. Sandhawalia, C.J.

5. I agree.


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