JUDGMENT
N.K. Bhattacharyya, J.
1. The present revision is directed at the instance of the defendant/petitioner, against the impugned order No. 121 dated 19. 2.91 passed by the Additional Munsif, Tamluk in T.S. No. 61 of 1990 allowing the plaintiff to depose after the evidence of PWS, 1, 2 and 3, on commission.
2. The question mooted in this case for decision is whether the plaintiff, in the order of examination of witnesses can be examined after examination of other witnesses for the plaintiff.
3. In the plaintiff’s suit for eviction of the defendant from the suit premises on the ground of default and reasonable requirement for establishing a cycle-shop for the plaintiff’s son, three witnesses of the plaintiff were examined on 10-12-90, 12-12-90. Of the three PWS, PW-1 is the son of the plaintiff and a power of attorney holder of the plaintiff and he deposed on behalf of the plaintiff on the strength of that power of attorney. In his examination-in-chief, he stated on oath that the plaintiff would not depose in the case.
4. From the evidence of the plaintiff it has been extracted that the defendant’s wife has a shop of electronic goods under the name style of “Sujata Electronics.”
5. On 19.12.90, after the examination of the two witnesses of the plain tiff, namely, Manick Lal Maity, PVV-2 and Deba Brata Das, PW-3, an affirmed application was made on behalf of the plaintiff seeking permission from the Court to allow the plaintiff to be examined on commission on the ground that as the case is on the ground of reasonable requirement the burden of proof to prove the same is on the plaintiff which cannot be shifted to any other witness for the plaintiff and that the plaintiff is an old lady and is suffering from various types of ailments.
6. The defendant/petitioner filed a verified objection against the said application and ultimately, after hearing both the parties, the impugned order has been passed by the learned trial Court allowing the said petition.
7. Contention was raised by the petitioner’s learned Advocate, Mr. Tabrak Ali, that the said order was passed by the learned Trial Court in violation of the provision of Rule 3A of Order 18 of the CPC, as the provision is a mandatory one. In support of his contention, he placed reliance on a Division Bench decision of this Court, Usha Ghosh v. Rabindra Nath Das, 1991 (1) CLJ 434.
8. On behalf of the plaintiff /opposite party, the learned Advocate, Mr Subhra Kamal Mukherjee, contended that the provision, as contained in Rule 3A of Order 18 of the CPC is not mandatory but directory. In support of his contention, he placed reliance on a Single Bench decision of this Court, Bhola Nath Mondal v. Kalipada Mondal, .
9. Rule 3A of Order 18 of the CPC reads as follows :-
“Where a party himself wishes to appear as a witness, he shall so 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 underscoring is by me).
10. So the question here is whether the word “shall” makes the provision mandatory or directory.
11. A Single Bench of the Calcutta High Court held, inter alia, in the case of Bholanath Mondal (supra) that the provision is directory and not mandatory. That is the view expressed by the Orissa High Court in the case of Maguni Dei v. Gauranga Sahu, AIR 1978 Orissa 228 and also by the Punjab and Haryana High Court in the case of Kwality Restaurant, Amritsar v. Satindra Khanna, .
12. Party may be examined even after examination of other witnesses in the interest of justice and for a just decision. This is the view that has been expressed by the Orissa High Court in the case of Parmananda v. Labanya Bewa, .
13. So the contention of Mr. AH that the provision contained in Rule 3A of Order 18 of the CPC is mandatory is without any substance and the decision that has been relied upon by him, namely, Usha Ghosh’s case (supra), is not at all relevant in this case as the same is not a pointer regarding the point at issue in this case. That is a decision relating to the provision under Rule 24(3) of Order 21 and Sections 9 and 47 of the CPC.
14. The Supreme Court held in the case of Raghavamma v. Chenchamma, :
“There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
15. In this case, one of the grounds for eviction of the defendant from the suit premises is reasonable requirement of the plaintiff for establishment of a cycle-shop for her son. Reasonable requirement of the plaintiff cannot be proved by any other witness of the plaintiff but, the plaintiff. This burden of proof cannot be shifted to any other witnesses of the plaintiff and the plaintiff shall have to prove the same.
16. The ground stated in the affirmed application of the plaintiff, seeking permission to examine herself at a later stage, is that she has to prove her reasonable requirement of the suit premises for establishing a cycle shop for her son. This burden of proof cannot be shifted to any other witnesses of the plaintiff.
17. The Supreme Court in the case of V. Nagraj v. R. Dayanand Sagar :
“Litigation is no hide and seek game but a search for truth and parties must place their cards off the table. AND procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course.”
18. A duty has been cast upon the Court to adjudicate the actual requirement of the suit premises by the plaintiff. Procedure cannot stand in the way of that fact finding course by the Court.
19. Madras High Court in the case of G.K. Rao v. A. Henry :
“. . .in view of the satisfactory reasons adduced by the plaintiff about his illness by way of an affidavit, to which no counter has been filed, the trial court has allowed the plaintiff to be examined as PW-2, I am of the view, on the facts of this case, that the impugned order of the trial court has to be sustained.”
20. In the instant case, in her affirmed petition, the plaintiff has stated about her illness and old age and prayed to be examined on commission. The trial court, after taking into consideration the old age and chronic ailments of the plaintiff, has permitted her to be examined at a later stage on com mission. Though there was an objection to that petition, but that was by a verified petition. So that was not oath versus oath but oath versus verification and the statement stands unrebutted.
21. Accordingly, I find no jurisdictional error in the impugned order. In the result, the revisional application is dismissed. The interim order of stay stands vacated. There will be no order as to costs. The learned Munsif is directed to expedite the hearing of the case.
22. Let xerox copies of this order be given to the learned Advocates of both the parties on usual undertaking and upon compliance of necessary formalities.