The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cutack Date: 26-Sep-2025 13:34:49 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.656 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Jayaram Jena …. -versus- Petitioner Lingaraj Ojha …. Opposite Party Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
: Mr. Subhendu Kar, Advocate For Opposite Party : Mr. M. Mohanty, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 18th September 2025 B.P. Routray, J. 1. Heard Mr. Subhendu Kar, learned Advocate for the Petitioner and Mr. M. Mohanty, learned Advocate for the Opposite Party. 2. Present C.M.P. is directed against the impugned order dated 04.04.2025 of the learned Civil Judge (Sr. Divn.), Pipili passed in C.S. No.112 of 2021, wherein the prayer of the Plaintiff to reserve his evidence as the beginner under Rule 3-A of Order 18, C.P.C. has been allowed by the court. C.M.P. No.656 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cutack Date: 26-Sep-2025 13:34:49 3. Present Opposite Party being the Plaintiff filed C.S. No.112 of 2021 praying to declare the registered sale deed as a mortgage deed and for redemption of the same along with consequential reliefs. Thus, according to the prayer of the Plaintiff, the key document is the registered sale deed whose validity has to be examined in course of the trial whether the same is to be treated as a mortgage deed according to the claim of the Plaintiff. 4. In such situation, the prayer of the Plaintiff to withheld his evidence, till his other witnesses are examined, somehow appears unnatural on the part of the Plaintiff. The right of the Plaintiff to examine him as a witness is a matter of procedure and enumerated under Rule 3-A of Order 18, C.P.C. It is true that, the mandate under Rule 3-A confers discretion upon the court to permit the party to withheld his evidence to such later stage provided the reasons are shown to the satisfaction of the court. The justification has given in the present case is to the effect that the attesting witness is aged about 84 years and thus his evidence may be taken at the first instance. This Court in the case of Maguni Dei vs. Gouranga Sahu, AIR 1978 Ori 228, have observed that the provisions of Rule 3-A of Order 18 of the C.P.C. is a power directory in nature and in proper cases, the Court has C.M.P. No.656 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cutack Date: 26-Sep-2025 13:34:49 such power to examine a party at a later stage. In Care Hospitals v. Nilesh, 2019 SCC OnLine Bom 2220, it is observed that; “7. Under Rule 3-A of Order XVIII, it is ordinarily necessary for a party to examine himself first before he examines any other witness on his behalf. A discretion has been conferred on the Court to permit such party to appear as his own witness at a later stage. The words ‘at a later stage’ would have to be given the ordinary meaning to mean that there is no prohibition for a party to seek such permission even after other witnesses have examined on his behalf. Restricting the application of Rule 3-A to situations only where prior permission of the Court is taken by a party for examining himself before other witnesses on his behalf have been examined would amount to reading such restriction in Rule 3-A of the Code which has not been provided. It is ultimately for the Court to grant such permission in the facts of the case. There could be a situation as the present case where the plaintiff was unavailable when he was required to lead evidence and after his Power of Attorney holder was examined as his witness, the plaintiff was available for leading his evidence. The Court if it finds it necessary to permit such party to be examined after his other witnesses have been examined can always permit such examination subject to the rider that such examination would not be for the purposes of filling in any lacuna that is sought to be filled in by such subsequent examination. It does not appear from a plain reading of Rule 3-A of Order XVIII that only if a party seeks prior permission before any other witness on his behalf has been examined that the Court can consider such request and that the hands of the Court would be tied if such request is made later on. The fact that the power to grant such permission at a later stage by exercising discretion and permitting a party to examine himself as a witness at a later stage is C.M.P. No.656 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cutack Date: 26-Sep-2025 13:34:49 conferred on the Court would imply that such permission could be sought in a given case after other witnesses on his behalf have been examined. The discretion having been conferred on the Court, it goes without saying that such discretion would have to be exercised in a judicious manner in the light of the facts of the case and obviously to prevent any mischief or filling up of any lacuna on the part of such party by examining himself at a later stage. The Court is also empowered to restrict such evidence in a given case as the facts demand. It is therefore not possible to agree with the position that if no application is made under provisions of Order XVIII, Rule 3-A of the Code seeking permission by the party prior to other witnesses being examined by such party, the opportunity is lost forever. On the other hand, the trial Court in exercise of its discretion can regulate the manner in which as well as the extent to which such party can be permitted to appear as his own witness at a later stage.” 5. As in the instant case, it is a suit where the dispute is with regard to execution of the sale deed and the sale deed has been executed in favour of the Defendant. When the character of document is questioned, undisputedly extrinsic evidence by way of oral evidence is admissible. [See Vimal Chand Ghevarchand Jain & Ors. Vs. Ramakant Eknath Jadoo, (2009) 5 SCC 713]. Here the Plaintiff has challenged the validity of the sale deed and therefore, it is necessary on the part of the Plaintiff to satisfy his contentions and assertions made in the plaint through oral evidence. The witness chooses to be examined C.M.P. No.656 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cutack Date: 26-Sep-2025 13:34:49 prior to the Plaintiff is the attesting witness to the said deed and as per the Plaintiff, he needs to be examined first considering his old age in the sense that he may not be alive for long time. But what is seen in the present case that by adopting such procedure sufficient time has been consumed contrary to the intention of the Plaintiff to examine the witness at the first instance. 6. The general rule is that the party who wishes to examine himself as a witness should be examined at the first instance so that he cannot get a chance to repair the evidence of other witness in his favour. So, considering the limited nature of prayer in the plaint, where the sale deed is the main disputed document and its validity is the subject matter in the suit, it is important that the Plaintiff should give his evidence at the first instance, who has executed the sale deed. 7. Accordingly, the C.M.P. is allowed and as a matter of procedure, the Plaintiff is required to give his evidence at the first instance. The impugned order dated 04.04.2025 of the learned Civil Judge (Sr. Divn.), Pipili passed in C.S. No.112 of 2021 is set aside with the direction to the Plaintiff to adduce his evidence at the first instance. C.M.P. No.656 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cutack Date: 26-Sep-2025 13:34:49 8.
Decision
The C.M.P. is accordingly disposed of. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.656 of 2025 Page 6 of 6