Shri Harnam Singh vs Shri Sobha Singh

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court, dated April 29, 1987, whereby the Defendant''s evidence was closed by the Court order.

The Defendant-Petitioner was allowed to lead additional evidence. One D.W. Brij Mohan (D. W. 6.), was present and his statement was recorded. After his evidence was over the Defendant-Petitioner wanted himself to be examined as his own witness by way of additional evidence, but it was objected to on behalf of the Plaintiff-Respondent on the ground that the Defendant never got examined himself first, i.e., before examining his other witness in view of the provisions of order XVIII Rule 3-A of the Code of Civil Procedure, (hereinafter called the Code). It prevailed with the trial Court and thus it closed the evidence without allowing him to come into the witness-box.

The learned Counsel for the Petitioner submitted that when the D. W. was being examined and the Defendant was present in Court, no such objection was raised on behalf of the Plaintiff that he should be examined first. Once the D. W. was allowed to be examined, the Defendant could not be debarred from coming to the witness-box on the ground that he should have examined himself first. On the other hand, the learned Counsel for the Plaintiff Respondent cited the Full bench judgment of this Court in The Amritsar Improvement Trust v. Smt. Ishri Devi (1979) 81 P.L.R. 354.

Therein, the question referred, was whether the recently inserted Rule 3-A of Order XVIII of the Code as mandatorily requires that premission of the Court for a party to appear as his own witness subsequent to his other witness should be obtained before the commencement of his evidence and not later?

The answer given by the Full Bench thereto was:

I would, therefore, hold that such permission may also be sought at a later stage and if the Court finds merit in the same it would not be debarred from acceding to such a prayer. Equally it deserves to be recalled that the Legislature has itself prescribed a certain safeguard by laying down the requirment of the recording of reasons for doing so.

After the said answer was given by the Full Bench, a note of caution was sounded in the following terms:

Before parting with this judgment, however, a note of caution must be sounded. Holding that the aforesaid rule is directory and the permission may be granted at a later stage is not to say that the mandate of the legislature in this context is to be easily disregarded or lightly deviated from. It is plain that as a normal rule the legislature requires the testimony of the party to be recorded first and the rationale there is not far to seek. Apparently in order to prevent an easy deviation from the rule, it has been laid down that the Court shall record its reasons for doing so. It is to be hoped that the trial Courts in whom primarily the discretion "has been vested would keep both the letter and the spirit of the rule in mind before according permission thereunder in exceptional circumstances, and not whittle the same down by allowing too easy and indiscriminate deviation therefrom.

After considering the dictum of the Full Bench I am of the considered opinion that the trial Court should have allowed the Defendant to come in the witness-box as he was present in Court and did not seek any further date for that purpose. At the most, for the lapse on the part of the Defendant he should have been burdened with costs.

Consequently, this revision petition succeeds and is allowed. The impugned order to the extent that the Defendant''s evidence is closed is set aside and the Defendant is allowed to be examined as his own witness on payment of Rs. 100/- as cost.