Kwality Restaurant v. Satinder Khanna, Punjab & Haryana High Court, Judgment, Law, casemine.com

Factual and Procedural Background

The central procedural dispute concerned the interpretation and application of Rule 3-A of Order XVIII of the Civil Procedure Code: whether a party must obtain the Court's permission to appear as his own witness strictly at the commencement of evidence or whether such permission can be sought at a later stage.

At the trial level, the trial Court, for adequate reasons and despite objection by the defendant, granted the plaintiff permission to appear as his own witness after the plaintiff had already examined some evidence in support of his case. That order was challenged by way of civil revision. The petitioner primarily relied on the decision reported as Jagannath Nayak v. Laxminarayan Thakur, AIR 1978 Orissa 1, which supported the petitioner's position.

Arguments of the Parties

Appellant's Arguments

The applicant (petitioner in revision) challenged the trial Court's order granting permission for the plaintiff to appear later as his own witness; the challenge was primarily founded on the precedent Jagannath Nayak v. Laxminarayan Thakur (AIR 1978 Orissa 1), which was said to support the petitioner's case.

Respondent's Arguments

Counsel for the respondent, Mr. Bhagirath Dass, argued that the phrase in Rule 3-A "for reasons to be recorded, permits him to appear as his own witness at a later stage" could be read to permit both the grant of permission and the party's appearance at a later stage to be sought after some witnesses have already been examined. In other words, the words "at a later stage" could apply to the timing of obtaining permission as well as to the timing of the party's appearance.

It was contended that a litigant might not anticipate the necessity of testifying at the outset, and developments during the course of evidence might make later examination necessary; denying such a litigant the opportunity to seek permission later would be harsh.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagannath Nayak v. Laxminarayan Thakur, AIR 1978 Orissa 1	Interpreted Rule 3-A to support the position that permission to appear as one's own witness must be obtained at the outset (the judgment was relied upon by the petitioner).	The Court examined and respectfully dissented from the view expressed in Jagannath Nayak. The Court held that nothing in the legislative history compels an inflexible rule as to the stage at which permission must be sought and that Jagannath Nayak's narrow construction was not supported by the materials.
Smt. Gurdial Kaur v. Pyara Singh, AIR 1962 Punj 180	Noted earlier precedent and practice indicating that the plaintiff ordinarily should testify before corroborative witnesses, but practice sometimes ran contrary to that rule in the absence of a statutory provision.	The Court cited this authority when discussing the historical practice and legislative history, observing that prior to the statutory provision the desirable practice was not uniformly observed; the decision was used to contextualize why the legislature and Law Commission considered a statutory rule.

Precedent

Rule or Principle Cited For

Application by the Court

Jagannath Nayak v. Laxminarayan Thakur, AIR 1978 Orissa 1

Interpreted Rule 3-A to support the position that permission to appear as one's own witness must be obtained at the outset (the judgment was relied upon by the petitioner).

The Court examined and respectfully dissented from the view expressed in Jagannath Nayak. The Court held that nothing in the legislative history compels an inflexible rule as to the stage at which permission must be sought and that Jagannath Nayak's narrow construction was not supported by the materials.

Smt. Gurdial Kaur v. Pyara Singh, AIR 1962 Punj 180

Noted earlier precedent and practice indicating that the plaintiff ordinarily should testify before corroborative witnesses, but practice sometimes ran contrary to that rule in the absence of a statutory provision.

The Court cited this authority when discussing the historical practice and legislative history, observing that prior to the statutory provision the desirable practice was not uniformly observed; the decision was used to contextualize why the legislature and Law Commission considered a statutory rule.

Court's Reasoning and Analysis

The Court reproduced Rule 3-A and analyzed its language and legislative history step by step:

Textual analysis: The rule prescribes that a party who wishes to appear as a witness should do so before other witnesses on his behalf are examined, which on its face is mandatory. However, the rule expressly creates an exception: "unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage."

Timing not specified: The Court observed that the statute does not prescribe the precise time at which such permission must be obtained. The language does not say permission must be sought "in the very first instance" before any witness is examined; thus the statute is silent as to the exact stage for securing permission.

Principle of procedural construction: The Court emphasized that procedural rules are meant to serve justice and should be liberally construed so that technicality does not stifle material evidence. An overly strict interpretation that denied a litigant the opportunity to testify simply because he did not secure permission at the very outset would frustrate the purpose of procedure.

Consideration of opposing construction: The Court reviewed the respondent's plausible argument (based on the phrase "at a later stage") that both the grant of permission and the party's appearance might be required to be sought before any witness is examined. The Court acknowledged the plausibility but rejected an inflexible application that would operate harshly in practice.

Legislative history and Law Commission reports: The Court examined Law Commission reports (14th, 27th, 54th) cited in Jagannath Nayak. It noted that while the Commission favored the ordinary rule that a party should ordinarily be examined before other witnesses, the Commission did not advocate absolute rigidity; the 54th Report, while recommending a statutory provision, confined the rule to ordinary cases and accepted an exception where hardship arose. The Court found nothing in the legislative history to support an inflexible rule fixing the precise stage at which permission must be sought.

Rejection of Jagannath Nayak's rigid reading: Although the Single Judge in Jagannath Nayak considered the rule mandatory and not merely directory, the present Court held that the exception in the statute—permission for later appearance for reasons to be recorded—must be read together with the mandate and cannot be divorced from it. Therefore the Court recorded its dissent from the narrow construction adopted in Jagannath Nayak.

Conclusion of analysis: The Court concluded that a narrow or too strict view of Rule 3-A would not advance justice; the stage at which permission is sought is not so vital as to debar a litigant later from seeking it or to inexorably stifle evidence if the litigant misses the opportunity to obtain permission at the commencement of evidence.

Holding and Implications

Holding: The revision petition was dismissed. The Court held that permission under Rule 3-A may be sought at any stage of the evidence and, if the Court finds merit in the application, it is not debarred from granting such permission. The parties were directed to bear their own costs.

Implications:

Direct effect on the parties: The trial Court's order granting the plaintiff permission to appear as his own witness after some witnesses had been examined was sustained by the dismissal of the revision petition; the plaintiff was not precluded from being examined because permission had not been obtained at the very outset.

Interpretive consequence: The Court expressly dissented from a prior decision (Jagannath Nayak) that favored a rigid requirement that permission be obtained only at the commencement; instead the Court interpreted Rule 3-A as permitting the court to grant permission at a later stage where adequate reasons are shown. The Court relied on the statutory text, the principle that procedural rules should facilitate justice, and the Law Commission's reports, which did not prescribe an inflexible timing for securing permission.

Precedential note: The opinion articulates the Court's view that the timing for seeking permission under Rule 3-A is not strictly fixed by the statute and that courts retain discretion to permit later applications. The opinion records a dissent from the narrow view taken in Jagannath Nayak and thereby clarifies the Court's approach to the interpretation of the procedural rule in question.

Disposition: Revision dismissed; parties to bear their own costs.

Kwality Restaurant v. Satinder Khanna

1. Whether-R. 3-A of O. 18 of the Civil P. C. envisages that permission of the Court for a party to appear as his own witness subsequent to his other witnesses must necessarily be obtained at the very commencement of the evidence and not later, is the rather significant question which falls for determination in this civil revision admitted to a hearing by the Division Bench.

2. It is unnecessary to advert to the facts in any great detail. It suffices to mention that the trial Court for adequate reasons accorded permission (despite objection raised on behalf of the defendant) to the plaintiff for appearing as his own witness on an application made by him apparently after he had already examined evidence in support of his case. This order is sought to be challenged. primarily on the basis of the judgment re-ported as Jagannath Nayak v. Laxminarayan Thakur, AIR 1978 Orissa 1, which undoubtedly supports the case of the petitioner.

3. As the controversy must necessarily revolve around the provisions of the statute, it is reproduced for facility of reference.-

"R. 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."

4. Now a bare reference to the language of the aforesaid provision would make it manifest that the legislature has laid down the rule that a party appearing as his own witness must so appear be-fore any other witness on his behalf has been examined. This rule is couched in terms mandatory. However, in equally express terms one exception to the said rule has also been provided by the legislature. This is that with the permission of the Court such a Party for sufficient cause may be allowed to appear even at a stage subsequent to the examination of one or all of his witnesses. What is significant to note herein is that the language of the statute does not prescribe the precise time at which such permission is to be secured. It does not say that this must necessarily be in the very first Instance before any witness has been examined on behalf of the Party. One may say that the statute is, therefore, silent as to the stage at which this permission is to be secured. Nor can it be said that by necessary intendment the said permission must be sought at the very inception of the evidence and not later.

5. In construing! a provision of the aforesaid nature it must necessarily be kept in the forefront that in essence it lays down a rule of procedure. As has been oft repeated, procedure is ultimately the handmaid of justice meant to advance its cause and not to obstruct the same. A procedural rule, therefore, has to be liberally construed and care must be taken that so strict an interpretation be not placed thereon whereby technicality may tend to triumph over justice. It has to be kept in mind that an overly strict construction may result in the stifling of material evidence if for one reason or another the party concerned fails to secure the permission at the very first instance. That cannot easily be ascribed to be the intent of the legislature in a matter essentially procedural.

6. With the aforesaid canon of construction in the background one may proceed to examine the argument raised on behalf of the respondent. Relying particularly on the last lines of the rule, i. e. "for reasons to be recorded, permits him to appear as his own witness at a later stage", it was contended by Mr. Bhagirath Dass that the words "at a later stage" may go well with the permission to be obtained as also with the sequence of the stage of the appearance of the party. It was in fact contended that the language of the statute if at all is plainly open to the construction that both the permission and the stage of appearance by the party may be later to the examination of some or all of his evidence. Without more it may he observed that this argument is again not devoid of plausibility. It may well be imagined that a plaintiff or a defendant at the very earliest stage may not even think it necessary to step into the witness-box in support of his case. However, the trend of evidence either his own or that of the opposite party may necessitate his own examination or he may feel compelled to do so even at a later stage. But denying him that right merely on the ground that he did not at the very first instance anticipate such necessity and thus secure the permission of the Court before examining any one of his witnesses would perhaps be too harsh a construction to place on the rule in the absence of any express or implied intendment to that effect.

7. Broadly construed, therefore, the intention of the legislature appears to be that the normal rule prescribed by the legislature now is that a party appearing as his own witness should do so before any one of his own witnesses. However, the rule is not inflexible and may be deviated from with the permission of the Court. No specific stage is prescribed or fixed by the statute for securing its 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.

8. Coming now to the judgment primarily relied upon in Jagannath Nayak's case (AIR 1978 Orissa 1) (supra), it is evident that heavy reliance has been placed m the legislative history and in particular the report of the Law Commission. It is perhaps instructive to quote the relevant part of the 54th Law Commission Report on the point:--

"18. 2. 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.

18. 3. The Fourteenth Report had re-commended 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 thought that a rigid provision on the subject would not be desirable.

18. 4. 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 pro-vision."

A reference to Smt. Gurdial Kaur v. Pyara Singh, AIR 1962 Punj 180, would indicate that apart from the statutory provisions, precedent had earlier ruled that the plaintiff must first come in the witnessbox to depose to his case and be followed by corroborative evidence. However, it was equally noticed that practice sometimes ran contrary to this desirable rule and in the absence of a statutory provision the same could not be held m illegal. The legislative history and the above quoted comments of the Law Commission would indicate that they plainly took notice of this situation and the 27th Report of the Law Commission observed that though this should be the ordinary rule yet a rigid provision on the subject would not be desirable. The 54th Report, however, thought that the time had come when a statutory provision might he made, but did not necessarily say that it should be couched in absolute rigidity. Instead the observation would indicate that this rule would be confined to ordinary cages and the hardship, if any, arising therefrom was sought to 'be ameliorated by making an exception to this rule by way of seeking permission of the Court for appearance by the party as his own witness at a later stage. The relevant portion of the Report does not in any way indicate that the stage at which the permission was to be secured was either fixed or inflexible by necessary intendment. Indeed this seems to have been left entirely open With great respect to Ray, J., in the Orissa case, we are unable to find anything in the legislative history and the reports of the Law Commission which would indicate that any inflexible rule with regard to the stage of seeking permission was sought to be laid down.

9. The learned Single Judge in Jagannath Nayak's case (supra) had then sought support for his view on the ground that the rule was mandatory and not directory. Assuming it to be so, it is clear that the mandate laid therein rearding the party appearing before his other witnesses has been itself provided with an exception where permission can be accorded by the Court for adequate reasons. When the provision itself provides both the mandate and an exception to the rule, the one cannot be divorced from the other. The significant thing to highlight here is that the question at issue is not with regard to the ordinary rule that a party shall appear before any witness on his behalf but pertains to the stage at which permission to appear at a later stage is to be secured. Whilst the ordinary rule with the exception may be deemed as mandatory, there is nothing inflexible in R. 3-A with regard to the stage of the permission. For the reasons aforesaid, with great respect we are compelled to record our dissent from the view expressed in Jagannath Nayak's case (supra).

10. We are inclined to hold that a too narrow view of a procedural provision would not tend to subserve to the interest of justice. The stage at which the requisite permission under the statute is to be sought is not so vital a matter which should debar the litigant later from seeking the permission or inexorably stifle his evidence if he once misses the opportunity of securing such permission at the very time when he is to commence leading his evidence.

11. We are, therefore, of the view that such permission may be sought at any stage and if the Court finds merit in the same it would not be debarred from acceding to such a prayer.

12. No other point has been urged.

13. Finding no merit in this revision petition we hereby dismiss the same but leave the parties to bear their own costs.

14. Revision dismissed.

Civil Revision No. 358 of 1978

Kwality Restaurant v. Satinder Khanna

Analytical Summary of the Opinion (Rule 3-A, Order XVIII, Civil Procedure Code)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kwality Restaurant v. Satinder Khanna

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