Devi Sahai vs Municipal Committee, Narnaul

A.L. Bahri, J.—Devi Sahai, plaintiff, has approached this Court in a revision petition filed against the order dated February, 8, 1988 of the Additional Senior Sub Judge, Narnaul, declining to allow him to appear as his own witness.

Devi Sahai filed a suit for the grant of permanent injunction restraining the Municipal Committee Narnaul, from demolishing the super structure raised by the plaintiff who claims to be the owner in possession thereof. The plaintiff led his evidence and closed the same. However, he forgot to appear himself as his own witness. On that account, an application was filed that he should be permitted to appear as his own witness which has been declined by the trial Court.

No doubt Order 18 Rule 3 A of the Code of Civil Procedure, provides that the party leading evidence must appear first of all as a witness However, this provision further provides that if permission is granted by the Court the party can appear as his own witness at a a later stage. The Full Bench of this Court in. The Amritsar Improvement Trust v. Smt. Ishri Devi (1979)81 P.L.R. 354 considered the aforesaid provisions and held as under:-

Indeed, when broadly construed, the intention of the Legislature appears to be that normal and the ordinary rule prescribed now is that the party appearing as his own witness should do so before any one of his witnesses. However, the rule is not an inflexible or sacrosanct one and may be expressly deviated from with the permission of the Court based on adequate reasons. No specific stage being prescribed or fixed by the statute for securing such permission, a party may perhaps as a matter of abundant caution apply at the stage of commencing his evidence and get the necessary permission and equally, if a sufficient ground is made out, he may secure the same at a later stage. The provisions of Rule 3-A are directory in nature and the Court is not denuded of jurisdiction, to grant permission when an application therefore, is made for good reasons even at a later stage.

Reference may also be made to Order 18 Rule 2 of the Code of Civil

Procedure, which is as under:-

Statement and production of evidence-(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case

(3) The party begining may then reply generally on the whole case.

(4) Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage.

A perusal of sub-rule (4) of Rule 2 of the Code of Civil Procedure, as reproduced above, would show that for reasons to be recorded, the Court can permit any party to examine any witness at any stage. The rules of procedure are meant for administering substantial justice and not to cause hinderance therein. Present is such a case where by mistake the plaintiff closed his evidence without realising that his own statement had not so far been recorded, and immediately thereafter he moved the Court with an application. The defendant has not led his evidence so far and thus no prejudice, would be caused to him if the plaintiff is allowed to appear as his own witness Accordingly, this revision petition is allowed. The order of the trial Court is set aside. The petitioner is to be allowed one more opportunity to appear as his own witness which would be subject to payment of Rs. 300/- as costs to be paid in the trial Court. The parties through their counsel are directed to appear in the trial Court on August 8, 1988. There will be no separate order regarding costs of this revision petition.