Analysis of Order 18 Rule 3-A CPC

An Analysis of Order 18 Rule 3-A of the Code of Civil Procedure, 1908: The Party as Witness

Introduction

The Code of Civil Procedure, 1908 (CPC) meticulously outlines the procedural framework governing civil litigation in India. Within this framework, Order 18 deals with the hearing of the suit and examination of witnesses. A significant provision, Rule 3-A of Order 18, inserted by the CPC (Amendment) Act, 1976, addresses the sequence in which a party to the suit, who wishes to appear as a witness, should testify. This rule has been the subject of considerable judicial interpretation, particularly concerning its mandatory or directory nature, the timing for seeking the court's permission for deviation, and the consequences of non-compliance. This article aims to provide a comprehensive analysis of Order 18 Rule 3-A, drawing upon relevant statutory provisions and judicial pronouncements, primarily focusing on the reference materials provided.

The Genesis and Objective of Order 18 Rule 3-A

Order 18 Rule 3-A was introduced into the CPC with effect from 1st February 1977, based on the recommendations of the Law Commission of India in its 54th Report. The primary objective behind this provision was to curb a prevalent practice where parties would examine all their other witnesses first and then step into the witness box themselves. This often allowed them to tailor their testimony to fill any lacunae or inconsistencies that may have emerged from the evidence of their other witnesses.[1] As observed by the Andhra Pradesh High Court in Kondaveeti Pranchis v. Mallarapu Lurdamma, "the intendment of Rule 3-A is to check the practice of leading the evidence of other witnesses and then appear as a witness to fill up the loopholes and the gaps in the evidence of other witnesses, which was prevalent before its insertion."[2] Thus, the rule aims to ensure fairness in the trial process and promote the presentation of truthful evidence.

Decoding Order 18 Rule 3-A: Text and Interpretation

Order 18 Rule 3-A of the CPC reads as follows:

"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."

The General Mandate: Party's Primacy in Deposition

The initial part of the rule establishes a general mandate: if a party to the suit desires to give evidence, they "shall so appear before any other witness on his behalf has been examined." This implies that the party's testimony should ordinarily precede that of other witnesses they intend to produce. This sequence is designed to ensure that the party's account is presented firsthand, without the potential influence of having heard their supporting witnesses.

The Proviso: Judicial Discretion and Recorded Reasons

The latter part of Rule 3-A carves out an exception: "unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage." This vests the court with discretion to allow a party to testify after other witnesses have been examined. However, this discretion is not unfettered. The court must record its reasons for granting such permission. This requirement of recording reasons acts as a safeguard against arbitrary exercise of discretion and ensures transparency in the judicial process. The reasons must be cogent and justify the deviation from the general rule.

Judicial Interpretation: Mandatory or Directory?

A significant point of contention has been whether Order 18 Rule 3-A is mandatory or directory in nature. The use of the word "shall" in the provision might initially suggest a mandatory character. However, the overwhelming judicial consensus, as reflected in various High Court judgments, is that the provision is directory, not mandatory.

The Punjab & Haryana High Court in Kwality Restaurant v. Satinder Khanna held that the rule is not inflexible and can be deviated from with the permission of the court, emphasizing a purposive interpretation where procedure is the "handmaiden of justice."[3] This view was echoed by a Division Bench of the Madras High Court in Ravi And Another Petitioners v. Ramar, which, after considering conflicting decisions, concluded that the provision is directory. The court observed that merely because a provision is couched in negative language implying mandatory character, it is not without exceptions, and courts may hold it directory keeping in view the entire context.[4]

Similarly, the Allahabad High Court in Kamal Das And Others v. The Learned Addl. Commissioner Lucknow And Others, citing its earlier decision in Mohd. Aqil v. Alimulla (1978 SCC OnLine All 247), reiterated that the provisions of Order 18 Rule 3-A are directory.[5] The Andhra Pradesh High Court in Kondaveeti Pranchis also affirmed this, stating that the rule allows the court discretion.[6] The Rajasthan High Court in Pokhardas v. Govind Sharan Ors agreed that the provision is directory.[7] The Calcutta High Court in Hari Charan Das v. Sm. Binapani Das, relying on Bhola Nath Mondal v. Kalipada Mondal (AIR 1981 Calcutta 295), also held the provision to be directory.[8]

The rationale behind treating the rule as directory is to ensure that procedural technicalities do not obstruct the course of justice. If a party has genuine reasons for not deposing before their other witnesses, and the court is satisfied with these reasons, denying permission solely on a rigid interpretation of the rule could lead to injustice.

The Crucial Question of Timing: When to Seek Permission?

Another vital aspect is the stage at which a party must seek the court's permission to appear as a witness at a later stage. The rule itself does not specify the exact timing for such an application.

In Kwality Restaurant, the Punjab & Haryana High Court clarified that the statute does not explicitly mandate the timing for seeking permission, and an inflexible interpretation requiring such permission at the very onset would contravene the principle of priority of justice over procedural technicalities. The court held that permission can be granted if sufficient cause is demonstrated, without the necessity of securing such permission at the very commencement of the evidence.[9]

The Madras High Court in Ravi v. Ramar also opined that permission can be sought at a subsequent stage.[10] This was reiterated in S. Ramachandra Reddy v. Natarajan, where the court, citing Ravi v. Ramar, stated that such permission can be sought even after examining other witnesses, but emphasized that an application for such permission is necessary.[11] The Patna High Court in Debichand Mohan Lal v. Surender Kumar Dungerwal dealt with a scenario where an objection was raised when the plaintiff offered himself as a witness after examining other witnesses without prior permission, highlighting the practical issues that arise.[12]

The Andhra Pradesh High Court in Kondaveeti Pranchis observed that "a party may perhaps as a matter of abundant caution apply at the stage of commencement of evidence for permission to be examined at a later stage," but did not preclude a later application.[13] The court's primary concern is the sufficiency of reasons for allowing a departure from the normal sequence.

Scope and Application of the Rule

Party v. Other Witnesses (including Power of Attorney)

The rule specifically applies when "a party himself wishes to appear as a witness." Issues often arise concerning witnesses closely related to the party, such as a spouse or a power of attorney (PoA) holder.

In Jaldu Visveswara Rao And Others v. Mandala Dhana Lakshmi, the Andhra Pradesh High Court permitted the plaintiff's husband (a competent witness under Section 120 of the Indian Evidence Act, 1872) to be examined first. The court held that the question of whether the plaintiff herself could be permitted to examine herself later would be decided if and when she filed a petition for that purpose, implying that the initial examination of the husband did not automatically bar her subsequent testimony, subject to court permission under O.18 R.3-A.[14]

The case of Shaik Rafath Begum v. T.V.R Anjaneyulu (Died Through Lrs.) involved a plaintiff who, after partial cross-examination, sought to eschew her evidence due to sickness and examine her husband (also her PoA holder). The trial court directed the plaintiff to give evidence first. The High Court, referencing Janki Vashdeo Bhojwani v. Indusind Bank Ltd.[15] (a case also cited in Man Kaur (Dead) By Lrs. v. Hartar Singh Sangha[16] for the principle that a PoA holder cannot depose on matters of personal knowledge of the principal), noted that the court has no power to direct a party to give evidence. It also observed that under O.18 R.3-A, a party can seek permission to depose later.[17] The interplay between a party's right to present evidence through a PoA holder and the party's own testimony under O.18 R.3-A requires careful consideration of the facts of each case and the nature of the evidence to be adduced.

The Karnataka High Court in Ibrahim Farukmiya Karajgi v. Kasimkhan And Another touched upon the distinction between the evidence of a party and a witness in the context of O.18 R.3A and other rules, particularly regarding evidence by affidavit under O.18 R.4.[18]

Co-parties

The application of O.18 R.3-A to co-plaintiffs or co-defendants has also been considered. In Pokhardas v. Govind Sharan Ors, the Rajasthan High Court dealt with a co-plaintiff filing an affidavit in evidence. The court noted that witnesses for the plaintiffs had not yet been cross-examined, and thus it could not be held that "any other witness on behalf of the plaintiff had been examined" in a complete sense. It found no infraction of O.18 R.3-A in allowing the co-plaintiff to file his affidavit.[19] The Telangana High Court in Y. Prabhakara Reddy v. K. Pramod Kumar Reddy discussed the rule in the context of examination of parties, especially when their pleas are similar, and observed that the prohibition under O.18 R.3-A is regarding examination of a party's *other witnesses* before the party, not necessarily the order of examination among co-parties themselves if their interests align.[20]

Meaning of "Examined"

The term "examined" in O.18 R.3-A has been interpreted to mean the completion of examination, including cross-examination. In Pokhardas, the court suggested that the filing of an affidavit in lieu of examination-in-chief, without subsequent cross-examination, might not constitute full "examination" for the purposes of the rule.[21] This implies that a party might be able to step in before their other witnesses have been fully cross-examined.

Applicability in Special Proceedings

The strict applicability of CPC provisions, including O.18 R.3-A, to proceedings before tribunals or special courts can vary. In A.N. Mehta v. K. Thomas, the Madras High Court, dealing with a Rent Control proceeding, observed that the provisions of the CPC cannot be applied strictly to Rent Control proceedings and allowed a landlord to examine himself after another witness (his PoA) had deposed, considering the specific requirements of proving means in an eviction case.[22]

Consequences of Non-Compliance

If a party examines other witnesses before deposing themselves, without obtaining the court's permission under O.18 R.3-A, the consequences can vary. Given the directory nature of the rule, the court may still grant permission post-facto if sufficient cause is shown. However, if no permission is sought or if the court finds no valid reasons, it might refuse to allow the party to depose at a later stage. In some instances, the court might draw an adverse inference against the party for not following the prescribed procedure, especially if it appears to be a deliberate attempt to gain an unfair advantage. The ultimate decision rests on the court's discretion, exercised judiciously in the interest of justice.

Conclusion

Order 18 Rule 3-A of the Code of Civil Procedure, 1908, plays a crucial role in regulating the sequence of witness examination in civil trials. While it establishes a general rule that a party wishing to testify should do so before their other witnesses, it wisely incorporates judicial discretion to permit deviations for recorded reasons. The judiciary, through consistent interpretation, has established that this provision is directory rather than mandatory, emphasizing that procedural rules are intended to facilitate, not frustrate, justice. Permission for a party to depose at a later stage can be sought and granted even after other witnesses have been examined, provided sufficient cause is demonstrated and reasons are recorded by the court. The objective remains to prevent parties from unfairly tailoring their evidence while ensuring that genuine cases are not defeated by procedural rigidity. The application of this rule requires a balanced approach, considering the specific facts of each case, the reasons for deviation, and the overarching principles of a fair trial.

References