HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION No. 649 OF 2010 Tuesday, the First day of June, Two Thousand and Ten Between Aeluri Showbhagyawathi Petitioner AND Bantu Butchi Babu Respondent ORAL ORDER: This Civil Revision Petition is directed against the order dated 8.2.2010 passed in IA No. 808 of 2009 in O.S. No. 109 of 2001 on the file of the Principal Junior Civil Judge, Miryalguda, Nalgonda District, whereby and whereunder the learned Junior Civil Judge allowed the application filed under Sec. 151 CPC and permitted defendant to examine himself as a witness. When the Civil Revision Petition came up for admission on 23.2.2010, the respondent/defendant entered appearance through a counsel. Heard learned counsel for the parties and perused the material brought on record. The learned counsel appearing for the petitioners/plaintiffs submits that the respondent/defendant did not chose to examine himself as a witness in the initial stage and he made a categorical statement before the trial court that he was not going to examine himself as a witness and, therefore, sought permission to examine third parties as witnesses on his behalf. On such statement, the respondent/defendant was permitted to examine third parties as DWs 1 to 3. Permitting the defendant to examine himself as a witness after examination of DWs 1 to 3 causes much prejudice to the plaintiff and also tantamounts to allowing the defendant to fill up lacunae in the evidence of DWs 1 to 3. In support of his submission, reliance has been placed on a judgment of this court in Devarapathi Pattabhi Ramaiah Vs. Daruhiri Lakshmi Presanna and another ([1]). Much emphasis has been laid on paragraph 11 of the judgment, which reads as under: Number of judgments relied upon by the respondents’ counsel referred to above hold the view that there is no inflexible rule as to the point of time at which the permission of the court can be accorded under Rule 3A of Order 18 of the Code of Civil Procedure.(sic) The safeguard against the abuse of process is that the Court while according permission to depart from the general rule enshrined under Rule 3A of the Code of Civil Procedure is required to record reasons and goes without saying that such reasons must be cogent and germane to the issue. Once the reasons are recorded, they are open to scrutiny by the appellate Courts. Learned counsel for the respondent/defendant submits that the witnesses examined on behalf of the respondent/defendant expressed their ignorance on some of the documents which are sought to be marked as exhibits and it necessitated the respondent/ defendant to move an application before the trial court seeking permission to appear as a witness on his behalf. A further submission has been made that the trial court has assigned valid reasons in allowing the application and in such case, it is impermissible for this court, in exercise of the powers under Article 227 of the Constitution of India, to interfere with the order impugned in this revision. In support of his submission, reliance has been placed on a decision of this court K.V.Prasad Reddy Vs. Yarabolu Hariprasad Reddy([2]) wherein it has been held that the fact that the party did not obtain permission earlier to examine himself at a later stage, per se, is not a ground to refuse the permission to examine himself as a witness at a later stage. So, petition seeking permission to examine a party as a witness can be filed at any stage during the pendency of the suit, but reasons for seeking permission at a belated stage will have to be explained, to enable the court to record reasons for granting permission, provided it wishes to exercise its discretion to grant such permission. So, merely because a party did not reserve his right to come into the witness box, before he examines his witnesses, ipso facto does not lose his right to examine himself as a witness at a later stage. He can, by giving reasons or his failure to examine himself as a witness earlier, seek permission of the court to depose in support of his case. Order 18 Rule 3A reads as under: 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. Interpretation of the above rule fell for consideration before a Division Bench of this Court in Devarapathi Pattabhi Ramaiah’s case, first cited, wherein, it has been held as under: A reading of the above rule shows that it is in two parts, the first part of the rule creates a mandatory obligation on the litigant to examine himself as a witness before any other witness on his behalf is examined. If the rule were to end there, would have been no scope perhaps to interpret the rule except follow the letter part of the Rule. But the latter half of the rule provides power to the court to permit deviation from the general principle enshrined in the first part and accord permission to the litigant for reasons to be recorded by the Court. As far as the second part is concerned, the rule is not very definite as to the point of time at which such permission can be accorded. Indisputably, the respondent/defendant made a categorical statement before the trial court that he was not going to examine himself and on such statement and thereupon permission was granted to the respondent/defendant to examine third parties as witnesses. Having made such statement before the trial court, it is impermissible for the respondent/defendant to move an application under Sec. 151 CPC seeking permission to examine himself as a witness. The only reason assigned by the respondent/defendant is that the witnesses examined on his behalf did not speak of certain documents. Virtually, the respondent/defendant intends to fill up the lacunae pointed out by the plaintiff in the cross examination of DWs 1 to 3. Thus permitting the respondent/defendant to examine himself as a witness at this distance of time causes much prejudice to the case of the petitioner/plaintiff. The trial court has not considered the material brought out on record and thereby erred in allowing the application filed by the respondent/ defendant under Sec. 151 CPC. Accordingly, the Civil Revision Petition is allowed at the stage of admission and consequently, the order impugned in the revision stands set aside. It is left open to the respondent/defendant to examine any other person as a witness, if he is so advised. No order as to costs. ____________________ B.Seshasayana Reddy, J. June 1, 2010 MAS [1] 1998(2) ALD 783(DB) [2] 2006(1) ALD (NOC 22)