The parties assume that a witness can be examined in any order and the parties can also bring their own versions at any time they wish. Any breach of this rule has to be viewed seriously and may result in eschewing the evidence of the parties, if no permission is taken under Order 18 Rule 3A of the Code to examine the party after examination of witnesses.
The Punjab & Haryana High Court (P&H HC) in the present recent decision held with the question as to what should happen in a case where more than three adjournments requests have been sought at the evidence stage. In the present matter Plaintiff had examined some witnesses and sought time for production of a hand writing expert. An application was moved by Defendants under the provisions of proviso to Order 17 Rule 1 that the case could not have been adjourned for more than three times in the manner contemplated under Order 17 Rule 1 of the Code of Civil Procedure (CPC). The evidence was sought to be closed on the ground that the Plaintiff had already availed more than three opportunities, the court in such circumstances must only be sensitive to see whether there was any undue advantage which a person was trying to secure or whether the trial of the court was being impeded by any unreasonable conduct.
The High Court had observed that non-grating of adjournments beyond three times is salutary so long as the parties would stick to the schedule. It is not a mandate that will take away the power of the Court to grant more than three adjournments and if he does, no person can assume that the court was acting beyond jurisdiction. The provision is purely directory and an exhortation that unnecessary adjournments shall not be taken in court. The only way that any discipline can be enforced is by imposition of costs to cause reparation for the inconvenience caused to the party who comes to the court being ready but the other side takes times indefinitely. The court cannot merely close the evidence because three opportunities have been exhausted. It has still to see whether there was any circumstance to grant an adjournment or whether the party was taking undue advantage by not producing the evidence.
Order 18 Rule 3A of the CPC requires parties to be examined first before calling the witnesses it is simply a practice that is not followed in many of the subordinate courts (in Punjab and Haryana). Even if prior permission is not taken before the commencement of trial, it shall be sought at least at the time before the party is examined. The parties assume that a witness can be examined in any order and the parties can also bring their own versions at any time they wish. Any breach of this rule has to be viewed seriously and may result in eschewing the evidence of the parties, if no permission is taken under Order 18 Rule 3A of the Code to examine the party after examination of witnesses.
As a prospective position to be followed, it was held that if any party does not offer his or her evidence first and brings third party witnesses first and later offers to tender evidence without taking prior permission, the opposite party may oppose such evidence before the party’s evidence is tendered. The trial court shall not permit evidence to be given unless it sets out reason in writing why such permission is being given.
The Court also took reference of the case namely Gurmail Chand vs. Ashok Verma 2004 (3) RCR (Civil) 164, wherein it was held that if witnesses other than party was examined and party is examined later, no objection could be taken. It was held that the same would amount to putting the cart before the horse. Objections could be rightfully taken only when the party shows up to tender evidence and not when third party witness is given.
[Jasvir Singh and Anr. vs. Jaspal Singh]
(P&H HC, 30.03.2015 – CR No. 3595 of 2014)