The Punjab & Haryana High Court has clarified that the requirement under Order 18 Rule 3A CPC for a party to examine themselves as a witness before any other witness is not mandatory but directory. The judgment affirms that trial courts retain discretion to permit a party to testify later, provided valid reasons are recorded and no prejudice is caused to the opposing side.
Background & Facts
The Dispute
The petitioner, Gurlal Singh Danewalia, filed a civil suit in January 2015 seeking declaration, mandatory injunction, and permanent injunction concerning property rights against respondents, including Daljit Singh (defendant no.1). The written statement was filed on 16.05.2015. The plaintiff’s evidence commenced on 17.12.2015 and concluded on 15.11.2017. The defendants began presenting their evidence on 28.11.2017 and examined eight witnesses before seeking to examine Daljit Singh, the defendant himself, as DW-9.
Key Facts
- The suit was filed in January 2015
- Plaintiff’s evidence closed on 15.11.2017
- Defendants commenced evidence on 28.11.2017
- Eight witnesses (DW-1 to DW-8) were examined between 28.11.2017 and early 2024
- DW-9 Daljit Singh was examined-in-chief on 29.05.2024
- Daljit Singh produced medical records from SPS Hospital, Ludhiana, showing treatment for brain hemorrhage on 17.12.2017
- The petitioner’s counsel did not object to Daljit Singh’s examination on 29.05.2024 but sought an adjournment for cross-examination
- On 11.07.2024, the petitioner filed an application to discard DW-9’s testimony
- On 24.07.2024, Daljit Singh filed an application under Order 18 Rule 3A CPC seeking permission to examine himself as a witness after other witnesses
Procedural History
- 16.05.2015: Written statement filed by defendants
- 17.12.2015: Plaintiff’s evidence commenced
- 15.11.2017: Plaintiff’s evidence concluded
- 28.11.2017: Defendants’ evidence commenced
- 17.12.2017: Daljit Singh hospitalized for brain hemorrhage
- 29.05.2024: DW-9 Daljit Singh examined-in-chief; no objection raised by petitioner’s counsel
- 11.07.2024: Petitioner filed application to discard DW-9’s testimony
- 24.07.2024: Defendant filed application under Order 18 Rule 3A CPC for permission
- 19.09.2024: Civil Judge (Jr. Div.), Bathinda dismissed petitioner’s application and allowed defendant’s application
- 25.03.2026: Civil Revision Petition dismissed by Punjab & Haryana High Court
The Parties' Positions
The petitioner contended that Daljit Singh’s examination as DW-9 violated the mandatory requirement of Order 18 Rule 3A CPC, which mandates that a party must appear as a witness before any other witness on their behalf. The petitioner argued that the delay in seeking permission and the examination after eight witnesses rendered the testimony inadmissible.
The respondent, Daljit Singh, argued that the provision is directory, not mandatory, and that the trial court had recorded valid reasons for permitting his examination at a later stage, including his medical condition and absence of prejudice to the plaintiff.
Relief Sought
The petitioner sought quashing of the order dated 19.09.2024, discarding the examination-in-chief of DW-9 Daljit Singh, and setting aside the grant of permission under Order 18 Rule 3A CPC.
The Legal Issue
The central question was whether Order 18 Rule 3A of the Code of Civil Procedure mandates that a party must examine themselves as a witness before any other witness on their behalf, or whether the provision is directory and permits such examination at a later stage if the court records adequate reasons.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that Order 18 Rule 3A CPC is mandatory and non-negotiable. He contended that the failure to seek prior permission before examining any other witness renders the subsequent testimony of the party inadmissible. He relied on the literal reading of the rule and cited precedents suggesting strict compliance. He emphasized that the delay of nearly seven years between commencement of defendants’ evidence and examination of DW-9, coupled with the absence of prior application, violated the statutory mandate.
For the Respondent
The respondent’s senior counsel argued that Order 18 Rule 3A CPC is directory in nature, as settled by the Full Bench of this Court in Amritsar Improvement Trust v. Ishri Devi (1979 PLR 354). He submitted that the trial court had recorded detailed reasons for permitting Daljit Singh’s examination, including his medical condition (brain hemorrhage and surgery), the absence of any lacuna being filled, and the fact that the petitioner’s counsel had not objected at the time of examination but instead sought an adjournment for cross-examination. He further relied on Mita v. Balbir (2025 NCPHHC 34614) and Ram Chand v. Swaran Kaur (2025 NCPHHC 23269) to show that rejection of an application to disallow a witness amounts to implied permission.
The Court's Analysis
The Court undertook a detailed review of the statutory language, precedent, and factual context. It emphasized that the provision in Order 18 Rule 3A CPC is not absolute but permits exceptions when the court records reasons. The Full Bench in Amritsar Improvement Trust had held that the rule is directory and that the court retains jurisdiction to grant permission even at a later stage, provided the reasons are recorded.
"There appears to be nothing inflexible in Rule 3A with regard to the stage of securing the permission and thus, it was held that such permission may also be sought at a later stage and in case the Court finds merit in the same, it would not be debarred from acceding to such a prayer."
The Court noted that the trial judge had meticulously documented three valid grounds: (i) the defendant’s serious medical condition substantiated by hospital records; (ii) no prejudice to the plaintiff, as none of the eight prior witnesses were substantive or contested; and (iii) the petitioner’s counsel had not objected when DW-9 was examined on 29.05.2024, but instead requested an adjournment for cross-examination.
The Court further observed that the petitioner’s belated application on 11.07.2024 was an afterthought, filed only after the defendant had already testified and the plaintiff had had the opportunity to cross-examine. The trial court’s order dated 29.05.2024, which recorded the petitioner’s counsel’s request for adjournment, was decisive in establishing waiver.
The Court also reaffirmed the principle from Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 that the High Court’s power under Article 227 is supervisory, not appellate, and cannot be exercised to reappreciate evidence or substitute its view for that of the trial court absent perversity or illegality.
The Verdict
The revision petition was dismissed. The High Court upheld the order dated 19.09.2024 of the Civil Judge (Jr. Div.), Bathinda, which allowed the examination-in-chief of DW-9 Daljit Singh under Order 18 Rule 3A CPC. The Court held that the trial court had recorded adequate reasons for permitting the party to testify after other witnesses, and no prejudice was caused to the petitioner. The petitioner’s application to discard the testimony was rightly rejected.
What This Means For Similar Cases
Permission Under Order 18 Rule 3A CPC Is Discretionary, Not Automatic
- Practitioners must now argue that non-compliance with the sequence in Order 18 Rule 3A CPC does not automatically invalidate testimony if the court records valid reasons
- A party’s medical emergency, logistical constraints, or absence of prejudice can justify delayed examination
- The burden shifts to the objecting party to demonstrate actual prejudice, not mere procedural deviation
Waiver Through Conduct Is Binding
- Failure to object at the time a party is examined as a witness constitutes waiver
- Seeking an adjournment for cross-examination instead of challenging admissibility precludes later objections
- Courts will treat silence or acquiescence as implied consent, especially in prolonged litigation
Trial Courts Must Record Reasons - But Not Necessarily in Advance
- The requirement to record reasons is mandatory, but the timing of the application is not
- Applications under Order 18 Rule 3A CPC may be filed ex post facto, provided the court justifies the grant of permission
- Practitioners should always request written orders when permission is granted, even if applied for after the fact
