Aitipamula Shivalingam and anr. Vs. Aitipamula Chinna Narsamma - Court Judgment

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civil - examination of party at later stage - order 18 rule 3-a of code of civil procedure, 1908 - question for consideration is interpretation of provisions of rule 3-a seeking permission of court to examine witness after closure of evidence - party has shown sufficient reason to examine himself at later stage - held, court has power to permit party to examine himself at later stage with permission. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - thus, it is clear that a party who wishes to examine himself/herself at a later stage, need not seek permission of the court at the threshold itself it is sufficient if a petition is filed as required under the provisions before the court and the court, if satisfied with the reasons explained in the affidavit filed in support of the petition' could allow the application/petition while recording its reasons. we understand that the object is to prevent a party from covering the loopholes in the evidence of other witnesses examined earlier on its behalf if the court is satisfied that the aim of the party is not intended to fill up the lacunae or cover up the gaps, then the court can permit a party for examining himself/herself at a later stage. 292 of 1996. 11. as discussed by us in the foregoing paragraphs, if the court is satisfied that a party has shown sufficient reasons seeking permission of the court to examine himself/ herself at a later stage also it can permit the party to examine himself/herself at a later stage by giving reasons, in this case, though the petitioners have given reasons in the affidavit filed in support of their petition filed under rule 3-a of order 13 cpc, the court below has failed to appreciate the same and dismissed the said i.ordermotilal b. naik, j.1. order in i.a.no. 292 of 1996 in o.s.no. 141 of l983 dated 9-8-1996 passed by the learned district munsif. ramannapet is the subject matter of this revision petition.2. petitioners who are defendants in the suit o.s.no. 141 of 1983, filed i.a.no.292 of 1996 under order 18 rule 3-a of the civil procedure code ('for short cpc') seeking permission of the court to examine the first petitioner who is the first defendant in the suit as a witness, alter examining other witnesses on their behalf. the trial court, on contest by the respondent-plaintiff dismissed the said application by an order dated 9-8-1996 while accepting the submissions made on behalf of the respondent-plaintiff.3. this revision petition originally came up for consideration before brother justice b.s.a. swamy. the question which arises for consideration in this revision is the interpretation of the provisions of rule 3-a of order 18 cpc seeking permission of the court to examine a witness after closure of the evidence. when the matter came up for consideration before brother justice b.s.a. swamy, two decisions rendered by this court by two learned judges reported in pranchis v. m. lurdamma, : 1994(3)alt425 and in ch. seetamma v. k. malakonda reddy, : 1993(3)alt182 were cited, for renderingan appropriate decision. in the said decisions, two learned judges have taken different views on the interpretation of the provisions of rule 3-a of order 18 of cpc. brother justice syed shah mohammed quadri (as he then was) in the decision : 1994(3)alt425 supra has held that the requirement of seeking permission at the threshold, if a party' wishes to examine himself/herself as a witness at a later stage is not mandatory. however, brother justice m.n. rao (as he then was) in the decision : 1993(3)alt182 cited above has held that a party who chooses to examine himself/herself as one of the witnesses after closure of the evidence, shall necessarily seek permission from the court at the threshold itself and such permission is mandatory.4. it is, in this background, brother justice b.s.a. swamy, has referred the present matter to the division bench of this court for rendering an appropriate decision and thus, the matter came up before us.5. during the course of hearing of this revision, sri b. prakasha rao, learned counsel for the petitioners has placed before us a recent decision of the division bench of this court in devarapalli pattabhi ramaiah v. davuluri lakshmi prasanna, : 1998(2)ald783 . placing reliance on this decision, learned counsel contended that at any stage, a party can examine himself/herself as a witness on his/her behalf by seeking necessary permission from the court on a petition filed in this regard.6. the only question, therefore, falls for consideration before this court in this revision is whether a party to the proceedings is entitled to examine himself for herself as a witness after examining other witnesses on his/her behalf and if so, the requirement contemplated under rule 3-a of order 18 cpc is mandatory?7. to appreciate the object of the provisions, rule 3-a of order 18 cpc is extracted hereunder:order 18 rule 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.' this provision has been interpreted by two learned single judges of this court in the decisions : 1994(3)alt425 and : 1993(3)alt182 and by a division bench of this court in the decision ( : 1998(2)ald783 cited supra). in the decision cited supra, the division bench is of the view that the first part of the rule is a mandatory requirement which obliges the litigant to examine himself as a witness before any other witness on his behalf is examined. the division bench further held that the latter part of the rule provides power to the court to permit deviation from the general principle enshrined in the first part. that is to say, the court can permit the litigant to examine himself/ herself as a witness at any stage by recording reasons.8. a combined reading of the entire rule (3-a) gives us an impression that a party who wishes to examine himself/ herself as one of the witnesses in support of his/her case, has to appear first as a witness before any other witness is examined on his/her behalf. the provision further empowers the court to permit a party to examine himself? herself at a later stage also while recording reasons. thus, it is clear that a party who wishes to examine himself/herself at a later stage, need not seek permission of the court at the threshold itself it is sufficient if a petition is filed as required under the provisions before the court and the court, if satisfied with the reasons explained in the affidavit filed in support of the petition' could allow the application/petition while recording its reasons.9. it is not necessary for us to enlist the background under which the rule 3-a of order 18 cpc was introduced in the year 1976 on the recommendation of the law commission. the object of the amendment brought under rule 3-a of order 18 cpc is only to plug the loopholes when parties try to examine themselves as witnesses at a later stage only for the purpose of filling the gaps. the said mischief is sought to be remedied by an amendment under rule 3-a of order 18 cpc. we understand that the object is to prevent a party from covering the loopholes in the evidence of other witnesses examined earlier on its behalf if the court is satisfied that the aim of the party is not intended to fill up the lacunae or cover up the gaps, then the court can permit a party for examining himself/herself at a later stage.10. coming to the case on hand, the petitioners 1 and 2 in this revision are defendants 1 and 2 in the suit o.s.no. 141 of 1983. on behalf of the defendants, three witnesses were examined by 25-3-1992. the matter was adjourned from time to time. however, the first defendant in the suit (first petitioner herein) has filed i ano.292 of 1996 seeking permission of the court to examine himself as one of the witnesses. in support of his petition, the first petitioner has slated in the affidavit that he was sick and was bedridden and as such he was not in a position to give evidence in the court before the examination of other witnesses on their behalf therefore, he prayed the court below to permit him to examine himself as one of the witnesses on behalf of the defendants through the said i. a.no. 292 of 1996 which was filed under rule 3-a of order 18 cpc. this application was resisted by the respondent-plaintiff on the ground that the first petitioner has not obtained any permission from the court to examine himself at a later stage. before examining other witnesses, and as such, the said application is liable to be dismissed. the respondent-plaintiff in his counter did not resist the application as far as the reasons assigned by the first petitioner but has only resisted on the ground that interms of rule 3-a of order 18 cpc, the first petitioner did not seek permission of the court at the threshold itself for examining himself at a later stage. the lower court observed that the attempts made by the petitioners are belated and the application was filed after four and half years, after completion of evidence on their behalf and dismissed the said l.a.no. 292 of 1996.11. as discussed by us in the foregoing paragraphs, if the court is satisfied that a party has shown sufficient reasons seeking permission of the court to examine himself/ herself at a later stage also it can permit the party to examine himself/herself at a later stage by giving reasons, in this case, though the petitioners have given reasons in the affidavit filed in support of their petition filed under rule 3-a of order 13 cpc, the court below has failed to appreciate the same and dismissed the said i.a. the court below has not indicated its mind on the reasons stated by the petitioner in the affidavit. we are, therefore, inclined to say that the petitioners are able to show sufficient reasons for seeking permission from the court below enabling the first petitioner to examine himself as a witness on their behalf at a later stage. in the circumstances, the order impugned, in our view is liable to be set aside and accordingly we do so. consequently, this crp is allowed, however: without costs.12. the reference is answered accordingly.13. the suit is filed in the year 1983. it would be appropriate to direct the lower court to fix up a date for the evidence of the first petitioner herein who is the first defendant in the suit, and dispose of the suit as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order.

Judgment:
ORDER

Motilal B. Naik, J.

1. Order in I.A.No. 292 of 1996 in O.S.No. 141 of l983 dated 9-8-1996 passed by the learned District Munsif. Ramannapet is the subject matter of this revision petition.

2. Petitioners who are defendants in the suit O.S.No. 141 of 1983, filed I.A.No.292 of 1996 under order 18 Rule 3-A of the Civil Procedure Code ('for short CPC') seeking permission of the Court to examine the first petitioner who is the first defendant in the suit as a witness, alter examining other witnesses on their behalf. The trial Court, on contest by the respondent-plaintiff dismissed the said application by an order dated 9-8-1996 while accepting the submissions made on behalf of the respondent-plaintiff.

3. This revision petition originally came up for consideration before brother Justice B.S.A. Swamy. The question which arises for consideration in this revision is the interpretation of the provisions of Rule 3-A of Order 18 CPC seeking permission of the Court to examine a witness after closure of the evidence. When the matter came up for consideration before brother Justice B.S.A. Swamy, two decisions rendered by this Court by two learned Judges reported in Pranchis v. M. Lurdamma, : 1994(3)ALT425 and in Ch. Seetamma v. K. Malakonda Reddy, : 1993(3)ALT182 were cited, for renderingan appropriate decision. In the said decisions, two learned Judges have taken different views on the interpretation of the provisions of Rule 3-A of Order 18 of CPC. Brother Justice Syed Shah Mohammed Quadri (as he then was) in the decision : 1994(3)ALT425 supra has held that the requirement of seeking permission at the threshold, if a party' wishes to examine himself/herself as a witness at a later stage is not mandatory. However, brother Justice M.N. Rao (as he then was) in the decision : 1993(3)ALT182 cited above has held that a party who chooses to examine himself/herself as one of the witnesses after closure of the evidence, shall necessarily seek permission from the Court at the threshold itself and such permission is mandatory.

4. It is, in this background, brother Justice B.S.A. Swamy, has referred the present matter to the Division Bench of this Court for rendering an appropriate decision and thus, the matter came up before us.

5. During the course of hearing of this revision, Sri B. Prakasha Rao, learned Counsel for the petitioners has placed before us a recent decision of the Division Bench of this Court in Devarapalli Pattabhi Ramaiah v. Davuluri Lakshmi Prasanna, : 1998(2)ALD783 . Placing reliance on this decision, learned Counsel contended that at any stage, a party can examine himself/herself as a witness on his/her behalf by seeking necessary permission from the Court on a petition filed in this regard.

6. The only question, therefore, falls for consideration before this Court in this revision is whether a party to the proceedings is entitled to examine himself for herself as a witness after examining other witnesses on his/her behalf and if so, the requirement contemplated under Rule 3-A of Order 18 CPC is mandatory?

7. To appreciate the object of the provisions, Rule 3-A of Order 18 CPC is extracted hereunder:

Order 18 Rule 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.'

This provision has been interpreted by two learned single Judges of this Court in the decisions : 1994(3)ALT425 and : 1993(3)ALT182 and by a Division Bench of this Court in the decision ( : 1998(2)ALD783 cited supra). In the decision cited supra, the Division Bench is of the view that the first part of the rule is a mandatory requirement which obliges the litigant to examine himself as a witness before any other witness on his behalf is examined. The Division Bench further held that the latter part of the rule provides power to the Court to permit deviation from the general principle enshrined in the first part. That is to say, the Court can permit the litigant to examine himself/ herself as a witness at any stage by recording reasons.

8. A combined reading of the entire Rule (3-A) gives us an impression that a party who wishes to examine himself/ herself as one of the witnesses in support of his/her case, has to appear first as a witness before any other witness is examined on his/her behalf. The provision further empowers the Court to permit a party to examine himself? herself at a later stage also while recording reasons. Thus, it is clear that a party who wishes to examine himself/herself at a later stage, need not seek permission of the Court at the threshold itself It is sufficient if a petition is filed as required under the provisions before the Court and the Court, if satisfied with the reasons explained in the affidavit filed in support of the petition' could allow the application/petition while recording its reasons.

9. It is not necessary for us to enlist the background under which the Rule 3-A of Order 18 CPC was introduced in the year 1976 on the recommendation of the Law Commission. The object of the amendment brought under Rule 3-A of Order 18 CPC is only to plug the loopholes when parties try to examine themselves as witnesses at a later stage only for the purpose of filling the gaps. The said mischief is sought to be remedied by an amendment under Rule 3-A of Order 18 CPC. We understand that the object is to prevent a party from covering the loopholes in the evidence of other witnesses examined earlier on its behalf If the Court is satisfied that the aim of the party is not intended to fill up the lacunae or cover up the gaps, then the Court can permit a party for examining himself/herself at a later stage.

10. Coming to the case on hand, the petitioners 1 and 2 in this revision are defendants 1 and 2 in the suit O.S.No. 141 of 1983. On behalf of the defendants, three witnesses were examined by 25-3-1992. The matter was adjourned from time to time. However, the first defendant in the suit (first petitioner herein) has filed I ANo.292 of 1996 seeking permission of the Court to examine himself as one of the witnesses. In support of his petition, the first petitioner has slated in the affidavit that he was sick and was bedridden and as such he was not in a position to give evidence in the Court before the examination of other witnesses on their behalf Therefore, he prayed the Court below to permit him to examine himself as one of the witnesses on behalf of the defendants through the said I. A.No. 292 of 1996 which was filed under Rule 3-A of Order 18 CPC. This application was resisted by the respondent-plaintiff on the ground that the first petitioner has not obtained any permission from the Court to examine himself at a later stage. Before examining other witnesses, and as such, the said application is liable to be dismissed. The respondent-plaintiff in his counter did not resist the application as far as the reasons assigned by the first petitioner but has only resisted on the ground that interms of Rule 3-A of Order 18 CPC, the first petitioner did not seek permission of the Court at the threshold itself for examining himself at a later stage. The lower Court observed that the attempts made by the petitioners are belated and the application was filed after four and half years, after completion of evidence on their behalf and dismissed the said l.A.No. 292 of 1996.

11. As discussed by us in the foregoing paragraphs, if the Court is satisfied that a party has shown sufficient reasons seeking permission of the Court to examine himself/ herself at a later stage also it can permit the party to examine himself/herself at a later stage by giving reasons, In this case, though the petitioners have given reasons in the affidavit filed in support of their petition filed under Rule 3-A of Order 13 CPC, the Court below has failed to appreciate the same and dismissed the said I.A. The Court below has not indicated its mind on the reasons stated by the petitioner in the affidavit. We are, therefore, inclined to say that the petitioners are able to show sufficient reasons for seeking permission from the Court below enabling the first petitioner to examine himself as a witness on their behalf at a later stage. In the circumstances, the order impugned, in our view is liable to be set aside and accordingly we do so. Consequently, this CRP is allowed, however: without costs.

12. The reference is answered accordingly.

13. The suit is filed in the year 1983. It would be appropriate to direct the lower Court to fix up a date for the evidence of the first petitioner herein who is the first defendant in the suit, and dispose of the suit as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order.