The Jharkhand High Court clarified that Rule 3A of Order XVIII of the Code of Civil Procedure is a directory provision, thereby permitting a party to be examined as a witness even after other witnesses have been examined, subject to the court’s discretion and payment of costs.
Background & Facts
The Dispute
The petitioner, Laxman Sahu, aged about 82, sought to be examined as a witness in Original Suit No. 02 of 2024, which arose out of Probate Case No. 86 of 2011 concerning the estate of the deceased. The petition was filed under Order XVIII Rule 3A of the CPC read with Section 151, requesting permission to examine himself as a witness after two other witnesses had already been examined.
Key Facts
- The petitioner filed a petition dated 19.04.2024 under Order XVIII Rule 3A seeking permission to examine himself as a witness.
- The Additional Judicial Commissioner rejected the petition on 13.12.2024, stating that the petitioner had not sought prior permission.
- The petitioner is an octogenarian suffering from several ailments and submitted his examination-in-chief in the form of an affidavit, which is already on record.
- Hazri records (Annexure A/1 to A/9) show the petitioner’s presence in court from 16.02.2024 to 11.07.2025, contradicting his claim of ill-health.
- The petitioner offered to pay compensatory costs of Rs.5,000 to the plaintiffs for allowing his later examination.
Procedural History
- 19.04.2024: Petition filed by the petitioner under Order XVIII Rule 3A, CPC read with Section 151, seeking permission to examine himself as a witness.
- 13.12.2024: Order passed by the learned Additional Judicial Commissioner-XV, Ranchi rejecting the petition.
- 2025: Civil Miscellaneous Petition (C.M.P.) No. 675 of 2025 filed invoking Article 227 of the Constitution of India to quash the order dated 13.12.2024.
- 06 August 2026: Judgment delivered by Justice Anil Kumar Choudhary.
The Parties' Positions
- Petitioner: Relied on Pravesh Kumari & Ors. v. Rishi Prasad & Ors. (Patna HC) and Paramananda Fateshingh & Ors. v. Labanya Bewa & Ors. (Orissa HC) to argue that Rule 3A is directory. Asserted that his affidavit is already on record and that denying his later examination would prejudice his case.
- Opposite Parties: Contended that the petitioner was present throughout the trial, that Rule 3A is mandatory (citing Shri Ram Maharaj v. Raj Kishore Bhagat (Patna HC) and Ayyasami Gounder & Ors. v. T.S. Palanisami Gounder (Madras HC)), and that allowing late examination would fill gaps in the evidence and cause prejudice.
Relief Sought
The petitioner prayed for the quashing of the order dated 13.12.2024 and sought permission to examine himself as a witness, subject to payment of costs of Rs.5,000 to the plaintiffs.
The Legal Issue
Whether Rule 3A of Order XVIII of the Code of Civil Procedure is a mandatory provision that bars a party from being examined as a witness after other witnesses have been examined, or whether it is directory, allowing the court’s discretion to permit such late examination.
Arguments Presented
For the Petitioner
- Cited Pravesh Kumari (Patna HC) establishing that Rule 3A is directory, not mandatory.
- Relied on Paramananda Fateshingh (Orissa HC) that a court may permit a party to examine himself later if the evidence is essential.
- Emphasised his advanced age, medical ailments, and the existence of an affidavit-in-chief already on record.
- Offered to pay Rs.5,000 compensatory costs to the plaintiffs.
For the Respondent
- Asserted that the petitioner was present throughout the trial, as shown by Hazri records, negating any claim of incapacity.
- Relied on Shri Ram Maharaj (Patna HC) and Ayyasami Gounder (Madras HC) that Rule 3A is mandatory and intended to prevent parties from filling evidentiary gaps later.
- Argued that allowing the petitioner to appear later would prejudice the plaintiffs and create a loophole.
The Court's Analysis
The Court first examined the nature of Rule 3A of Order XVIII of the CPC. It noted that the provision was introduced to prevent litigants from strategically delaying their own testimony to fill evidentiary gaps. However, the Court found binding precedent in Pravesh Kumari that the provision is directory rather than mandatory. The Court affirmed the view of the Orissa High Court in Paramananda Fateshingh, holding that the discretion to allow a party to examine himself at a later stage remains with the trial court when the evidence is essential.
"the provision of Rule 3A of Order XVIII of Code of Civil Procedure is directory in nature and not mandatory."
The Court observed that the petitioner had already filed an affidavit-in-chief, which is on record, and that cross-examination would be limited to questions posed by the opposite party. Consequently, there was no risk of the petitioner introducing fresh evidence beyond the affidavit. The Court also considered the petitioner’s age and health, finding that the earlier denial caused undue prejudice.
In contrast, the respondents’ reliance on decisions characterising Rule 3A as mandatory was rejected because those decisions were either obiter or were distinguished on factual grounds. The Court emphasized that the purpose of the rule is to ensure administration of justice, not to create a rigid bar against legitimate late testimony.
Finally, the Court held that the Additional Judicial Commissioner erred in rejecting the petition without exercising discretion, thereby committing a grave illegality.
The Verdict
The Court quashed and set aside the order dated 13.12.2024 passed by the Additional Judicial Commissioner-XV, Ranchi. It allowed the petitioner to examine himself as a witness in Original Suit No. 02 of 2024, subject to payment of costs of Rs.5,000 to the plaintiffs within 15 days; if the plaintiffs refuse to accept the amount, it must be deposited in the Nazarat of the Civil Court, Ranchi. The civil miscellaneous petition is allowed to this extent only, and any interlocutory applications are deemed infructuous.
What This Means For Similar Cases
Directory Nature of Rule 3A
- Courts will treat Rule 3A of Order XVIII as a directory provision, giving trial courts discretion to permit late party-as-witness examinations when evidence is essential.
- Lawyers should frame applications emphasizing the essentiality of the testimony and any health or age factors, rather than assuming a mandatory bar.
Importance of Affidavit-in-Chief
- Submitting an affidavit-in-chief prior to seeking permission strengthens the case, as it limits the scope of cross-examination to the affidavit’s contents.
- Practitioners should advise clients to prepare such affidavits early to avoid evidentiary gaps.
Cost Implications
- Courts may condition permission on payment of nominal costs to the opposite party, ensuring that the remedy does not become a punitive tool.
- Parties should be prepared to meet such cost orders promptly to avoid further delays.
Strategic Litigation Advice
- When a party wishes to appear as a witness after other witnesses, file a detailed application under Order 18 Rule 3A citing the directory nature of the rule and supporting medical or age-related reasons.
- Attach Hazri records and any prior affidavits to demonstrate that the party’s testimony is not intended to fill gaps but to clarify existing evidence.
