CRP/6195/2026 of V.S.S.Kumaresan Nadar (Since Deceased) Vs M.Nelson on 1 October 2026

ORDER

This civil revision petition has been filed under Article 227 of the Constitution of India against the order passed in I.A.No.5 of 2025 in O.S.No.29 of 2017 by the learned Principal District Judge, Chengalpattu, wherein the application filed by the respondent/plaintiff for appointment of an Advocate Commissioner to examine the respondent/plaintiff at his residence and record the evidence, came to be allowed by the Court below.

2. Heard learned counsel for petitioners/defendants and learned counsel for respondent/plaintiff and carefully perused the materials available on record. This Court also went through the impugned order.

3. The respondent/plaintiff, who is a person aged about 78 years, had appointed a Power of Attorney Agent to represent on his behalf and to prosecute the suit. This Power of Attorney Agent was examined as PW-1 in this case. After completion of his evidence, the respondent/plaintiff filed I.A.No.5 of 2025 in O.S.No.29 of 2017 for examining him as a witness by appointing an Advocate Commissioner to record his evidence on behalf of the Court. Such an application was filed on the ground that the respondent/plaintiff is critically ill and he has very serious health complications and there are certain facts, which are within the personal knowledge of the respondent/plaintiff, which has to be deposed and therefore, the respondent/plaintiff himself wanted to depose in this case by appointing an Advocate Commissioner since he is not in a position to move out of his residence.

4. The petitioners/defendants opposed the application mainly on the ground that the respondent/plaintiff has not obtained leave of the Court as contemplated under Order XVIII Rule 3A CPC and therefore, the agent having been examined on the side of the respondent/plaintiff, the respondent/plaintiff cannot, thereafter, be examined and this attempt has been made only to cover up the lacuna and to get over certain answers that were given by the agent at the time of cross-examination.

5. In the case in hand, the respondent/plaintiff was represented through the Power of Attorney Agent to prosecute the suit. This Power of Attorney Agent was examined as PW-1. The plaintiff wanted to examine himself as a witness on the ground that there are certain facts, which are within his personal knowledge and that the same has to be deposed. However, since the respondent/plaintiff has not been able to move out of his residence due to ill- health, sought for appointment of an Advocate Commissioner to record his evidence on behalf of the Court. The Court below has held that the respondent/plaintiff alone will have the personal knowledge regarding certain facts and the reasons given by the respondent/plaintiff is acceptable and accordingly, an Advocate Commissioner was appointed to record his evidence.

6. Order XVIII Rule 3A CPC contemplates that where the party himself wishes to appear as a witness, he should appear before any other witness appear 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. This provision has been interpreted leniently by Courts and it has been held that a party should normally make an application at the threshold. However, the emphasis is that the party must give a genuine and germane reason as to why he is examining himself at a later stage. Therefore, what is necessary is that an application has to be filed seeking permission and that application need not be filed necessarily before the commencement of examination of witnesses.

7. This provision was brought into the Civil Procedure Code in the year 1976 amendment, in order to prevent a party allowing some other witness to be examined and later, to fill up the lacuna, enters as a witness at a later point of time. This provision strictly contemplates a scenario where a different person is examined as a witness and thereafter, the party to the proceedings examines himself later. In the case in hand, the Power of Attorney Agent was examined as PW-1 and the respondent/plaintiff, who is the principal, wants to examine himself subsequently. The question is whether the bar under Order XVIII Rule 3A CPC will apply in such a scenario.

8. A cue can be taken from a case where there is more than one plaintiff and some of the plaintiffs examine themselves and before the examination of the other plaintiffs, other witnesses are examined, this Court has held that there is no need to apply for permission in such a case under Order XVIII Rule 3A CPC. It was held that the prohibition will come into operation only when the party examines any other witness on his behalf before examining himself. Useful reference can be made to the judgment in R.Nagarajan and another v. Naveenchander Singh and others [2010 (6) CTC 14]. Reference can also be made to the judgment of this Court in G.K.Rao v. A.Henry [AIR 1987 Madras 178].

9. In the case in hand, the agent is none other than the alter ego of the respondent/plaintiff. The agent normally cannot answer questions on facts which are exclusively within the knowledge of the respondent/plaintiff. Therefore, such facts within the knowledge of the respondent/plaintiff can be deposed only by the plaintiff and that job cannot be performed by the agent. Therefore, the agent, being examined as PW-1 and subsequently, the respondent/plaintiff himself entering into the witness box and deposing facts, which are within his personal knowledge, will not strictly come within the purview of Order XVIII Rule 3A CPC.

N.ANAND VENKATESH J. gm/pss

10. If, even on a demurrer, the respondent/plaintiff attempts to cover up the lacuna with respect to certain answers given by the agent as a witness, it will become a subject matter of assessment of evidence/appreciation of evidence by the trial Court and it can always be argued before the Court in this regard. Therefore, looking at the case from any angle, the order passed by the Court below cannot be held to be perverse warranting interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, Connected miscellaneous petition is closed. 01.10.2026 Index: Yes Speaking order Neutral Citation: Yes gm/pss To The Principal District Judge, Chengalpattu. Civil Revision Petition No.6195 of 2026