Abida Begum vs Zaira Begum

Heard Mr. O.P. Thakur, learned counsel for the petitioners as well as Mr. A.G. Sheikh, learned counsel for the respondents in extenso.

Through the currency of this revision, the petitioners seek correctness of the order formulated by the SubJudge, Ramban dated 23.08.2001,

whereby the petitioners application for examining her as witness, has been rejected.

Facts leading to the present revision, may be noted. In a suit initiated by the petitionersplaintiffs dated 27.08.1994, the issues were settled on

25.03.1996, after recording statements of the parties interms of Order 10 Rule 2 CPC. The parties led evidence in support of their rival claims in

the case.

An application, however, came to be preferred by the petitionersplaintiff that preliminary statement of the attorney of the plaintiffs recorded prior

to the framing of the issue, was not accordance with section 138 of the Evidence Act and sought the indulgence of the court for his examination as

her own witness in pleading that due to oversight and inadvertence, the petitioners were under impression that his evidence has been recorded after

framing of the issue. The trial court, however, found that this application did not merit acceptance before the trial court and stood rejected.

It was further contended that the trial court has not appreciated her contention in right perspective for grant of per mission to be examined as

witness under Order 18 Rule 3A CPC. It is further submitted by Mr. O.P. Thakur, Petitioners' advocate that Order 18 Rule 3A CPC is of

directory nature and not mandatory. The court has got power in a proper case to examine a party at a later stage even though a party has failed to

obtain its previous permission.

Mr. A.G. Sheikh, learned counsel for respondents however, submitted that though admittedly the court had discretion to grant permission to the

party to appear as witness at later stage, provided sufficient and cogent reasons are assigned. The petitioners, according to him, have not shown

any good reason for not appearing as witnesses. In case she wishes to ex amine herself before any other witnesses on her behalf has been

examined and in such event no such permission can be granted to the plaintiffs to appear as her own witness this belated stage of final arguments.

Order 18 Rule 3A in essence lays down a rule of procedure which is to be liberally construed. When broadly construed, the intention of

legislature appears to be that the normal and ordinary rule pre scribed now is that the party appearing as his own witness should do so before any

of his witness. However, this rule is not an inflexible and may be expressly deviated from with permission of court based on adequate reasons. No

specific stage is prescribed or fixed by the statute. The previsions of Order 18 Rule, 3A are directly in nature and the court is not denuded of its

jurisdiction to grant permission when an application therefore is made for good reasons at a later stage.

The connotation of rule should not be given a narrow interpretation. In proper cases, the party desiring to appear as a witness and applying to

be examined after other witnesses are produced must be accorded the permission. In other words, the provision has to be construed in a manner

which advance the cause of justice and should not be construed in a manner to frustrate it. A directory provision is generally affirmative in its terms.

Having regard to the language of the rule and particularly keeping in view the fact that the Order 18 Rule 3A does not contain any penal

provision to make it mandatory it is open to the trial court to grant permission to a party even after the statement of his witnesses have been re

corded.

In the instant case, the consul for the petitioners was under impression that statement of petitioner1 has been re corded after framing of the

issue, which statement infact, came to be made by the petitioner prior to the framing of the issue under order 10 CPC. He, however, learnt about it

only when the case was fixed for argument that the petitioner has not been examined as witness in the case. Petitioner manifestly seems to be acted

in good faith and in such circumstances, it is just proper and fair to permit her to examine herself at a later stage. The trial court does not seem to

have construed the provision of Order 18 Rule 3A CPC in its proper perspective and in imperative mandate and landed in award in refusing the

grant of permission to examine herself as her own witness even at a later stage.

Consequently, I allow the revision and setaside the order impugned. The petitionerplaintiff is permitted to appear and examine herself as

witness in a case. Parties through their counsel are directed to cause appearance before the trial court on 14th Feb. 2002 and the petitionerplaintiff

shall appear and examine herself as witness in the case on the said date. No order as to costs.