Shri Ram Maharaj vs Raj Kishore Bhagat

Satyeshwar Roy, J.—This application has been filed by the Defendant of Title Suit No. 166 of 1975 challenging the order dated 3-4-1978 passed by the learned lower court, rejecting the objection of the opposite party wherein he objected that the plaintiff opposite party is not entitled to examine himself as a witness at that stage of the hearing of the suit. The suit was taken up for hearing on 28-3-3 978 and on that date P.Ws. 1 and 2 were examined. Thereafter the suit was adjourned to 29-3-1978 when P. Ws. 3, 4 and 5 were examined on 30-3-1978, P.Ws. 6, 7 and 8 were examined on 31-3-1978, P.Ws. 9 and 10 were examined on 1-4-1978, P.Ws 11 and 12 were examined. The suit was adjourned to 3-4-1978 for further hearing. On 3-4-1978 when the opposite party wanted to examine himself as a witness, the petitioner filed an application stating therein that the plaintiff opposite party was not entitled to examine himself at that stage in view of Order XVIII, Rule 3-A of the CPC (hereinafter referred to as "the Code").

It is necessary to look into the Legislative background of Rule 3-A of Order XVIII of the Code. In its Fourteenth Report, the Law Commission in respect of Rule 3 of Order XVIII of the Code recommended as follows:

The parties to a proceeding should be in a position at the commencement of the proceedings to make up their minds whether they wish to give evidence. If they do wish, they should be required to enter the witness box before any of their witnesses are examined. We recommend that R, 2 or R. 3 of Order XVIII of the CPC be suitably amended so as to embody such a provision.

In its Twenty-Seventh Report, the Law Commission noticed this recommendation but felt as follows:

It is, however, considered unnecessary to name any such statutory provision. This should be the ordinary rule ; but a rigid provision on the subject does not seem to be desirable.

In its Fifty-Fourth Report the Law Commission felt it necessary to observe as follows:

We think that the amendment recommended in the 14th Report should be carried. Since the proposed rule will be confined to ordinary cases, the hardships arising from special features of the case, should not present a problem. Having regard to the persistent and notorious malpractice indulged in by litigants in this respect-Malpractice which borders on dishonesty-we think that the time has come to insert a statutory provision.

Accordingly, we recommend the insertion of the following rule in Order 18:

3-A. Where a party himself wishes to appear before any other witness 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.

The word used in this provision is "shall" which ordinarily is Mandatory. That it is mandatory will also appear from the Fifty-Fourth Report of the Law Commission which was accepted by the Legislature. The rule enable the court to permit a party to examine himself at a later stage and such permission may be granted by the court for the reasons to be recorded by it. On the plain reading of the rule it provides that such permission must be obtained from the court before any witness on behalf of a party is examined as a witness. If any other meaning is put to the interpretation of this rule it will be inconsistent with the legislative intent stated above. The plain meaning of rule, therefore, is that at the commencement of hearing of the suit, a party must examine himself as witness, if he intends to examine himself in that case or he must file an application for permission to examine himself as a witness at a later stage and if the court so permits the party to examine himself at a later stage, it shall record reasons for the same. It is true that it is a procedural law, but, the object of insertion of a procedural law being to suppress a mischief must also be strictly construed.

Even before the insertion of Rule 3-A was introduced the permissiveness of Rules 1 and 2 of Order XVIII of the Code in allowing parties to examine themselves at the end of their other witnesses was not conducive to better administration of justice. Reference may be made in this connection to the decision of Dua, J. (as he then was) in the case of Gurdial Kaur Vs. Pyara Singh, . It is, therefore, clear that the language of Rule 3-A is mandatory and it was introduced to serve administration of justice and not to stifle the cause of justice. The trial court, therefore, has no further jurisdiction to permit a party to examine himself at a later stage in the absence of permission having been obtained at the commencement of his evidence,

On a perusal of the order sheet it appears that no application was filed by the opposite party when the hearing of the suit was taken up on 28-3-1978. It will also appear from the order sheet that as many as twelve witnesses have been examined by the opposite party before he wanted to examine himself as a witness. In view of the interpretation given by me to Rule 3-A of Order XVIII of the Code, in the facts of this case, the opposite party cannot himself examine as witness.

Mr Debi Prasad, learned Counsel appearing on behalf of the opposite party did not dispute that the rule was mandatory but he argued that this court should not exercise its revisional jurisdiction in this case. The contention of Sri Prasad cannot be accepted. From the order passed by the learned court below, it appears that it has exercised its jurisdiction illegally and the order therefore shall have to be set aside.

In the result, this application is allowed and the impugned order passed by the learned court below is set aside. In the circumstances, there will be no order as to costs.