ORDER
Syed Shah Mohammed Quadri, J.
1. Two questions of frequent application, arise in this Civil Revision Petition:
(i) Whether the provisions of Rule 3-A of Order XVIII C.P.C., are mandatory; and
(ii) Whether the Court can grant permission to a party to the suit/ proceedings to examine himself as a witness after he had already examined other witnesses on his behalf.
2. The questions arise in the following circumstances:
The petitioner is plaintiff in O.S. No. 80 of 1986 on the file of the I Additional Subordinate Judge, Warangal. The sole respondent is defendant No. 6 in the said suit. For the sake of convenience, the parties herein will be referred to as per their array in the suit. The suit was filed for perpetual injunction against 14 defendants restraining them from interfering with the plaintiff’s possession of the suit land. After the plaintiff closed his evidence, the sixth defendant examined one witness as D.W.I. Later she came into the witness box as D.W.2. In the course of her examination in chief, an objection was taken by the plaintiff that in view of the provisions of Rule 3-A of Order XVIII, the sixth defendant cannot appear as a witness. The objection was overruled by the learned trial Judge by his order dated October 7,1993. The plaintiff challenged the validity of that order in C.R.P. No. 4109 of 1993. When the C.R.P., came up for hearing before my learned brother A. Gopala Rao, J., it was brought to his notice that an application was filed seeking permission of the Court to examine the sixth defendant as a witness as D.W.2 and that application was pending. On December 13,1993, the learned Judge disposed of the C.R.P., giving a direction to the trial Court to pass appropriate orders on the said petition within two weeks from the date of receipt of the order. Thereafter that application was allowed by the trial Court on February 1,1994. It is the correctness of that order that is assailed in this Civil Revision Petition.
3. Sri Narasimha Reddy, the learned Counsel for the petitioner urged two contentions before me:
(i) that the provisions of Order XVIIIRule3-A are mandatory, so, the sixth defendant cannot appear as a witness as D.W.2, that is, after examining other witnesses on her behalf; and
(ii) that in any event the sixth defendant cannot seek the permission of the Court to examine herself as D.W.2 after she had examined her first witness.
4. Sri M.V. Ramana Reddy, the learned Senior Counsel appearing for the respondent, has contended that the provisions are not mandatory and that by permitting the sixth defendant to examine herself as D.W.2, no prejudice is caused to the petitioner and that Rule 3-A does not require that the permission should be obtained before the party leads his evidence.
5. Since both the contentions are connected, I shall deal with them together. It will be useful to read the provisions of Rule 3-A of Order XVIII here, which runs thus:
“3-A. Party to appear before other witnesses:-
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 has own witness at a later stage.”
6. Wheher the Rule 3-A is mandatory or merely directory, is the question which concerns us. There is no acid test to determine whether a provision is mandatory or directory. However, there are certain factors which have to be considered before arriving at the conclusion about the imperative or directory nature of a provision. The provision has to be read as a whole. Use of expression ‘shall’ is prima facie indicative of mandatory nature but having regard to the context ‘shall’ can be read as ‘may’ and vice versa. The subject matter of the provision, its importance and its relation to the general object intended to be secured by the Act, will have to be studied. So also the consequences of noncompliance of the provisions will have to be taken note of. Craies on ‘Statute Law’ (7th Edition) at page 268 brings out the distinction between a mandatory provision and directory provision thus:-
“In Pearse v. Morrice, Taunton j., said that he understood “the distinction to be, that a clause is directory where the provisions contain mere matter of direction and nothing more, but not so where they are followed by such words as, “that anything done contrary to these provisions shall be null and void to all intents”.”
7. It is now well settled that the rules of procedure are intended to facilitate and not to obstruct the administration of justice. Procedure has always been described as hand-maid and not mistress of law meant to subserve the cause of justice and not to govern or obstruct it.
8. A plain reading of the rule extracted above shows that it enjoins that where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined. The rule also provides an exception and that is, with the permission of the Court, a party may appear as his own witness after his other witnesses have been examined but the Court has to record the reasons for granting permission.
9. Thus it is clear that no absolute bar is imposed by the provision on examination of party as his own witness after he has adduced evidence of other witnesses. On the contrary the provision enables such a course of action with the permission of the Court which has to record the reason for granting permission. Further no penal consequences are provided so as to exclude the evidence brought on record in violation of Rule 3-A from the consideration of the Court.
10. This provision is added by the Amendment Act of 1976. The intendment of the Rule is to check the practice, then prevalent, of leading the evidence of the witnesses of the party and then examining the party himself to fill up the loopholes and the gaps in the evidence of the other witnesses. Now a check is placed on this practice by enjoining that if the party has to be examined after the evidence of his other witnesses, it could only be done with the permission of the Court. On a reading of various rules of Order XVIII and keeping in view the abovesaid principles, I have no hesitation to come to the conclusion that the provision of Rule 3-A of Order XVIII is not mandatory but is only a directory. I may observe that as a general rule, evidence should not be shut off and that the parties should be given fair and reasonable opportunities to substantiate their case by leading the evidence on which they intend to rely. The view expressed by the other High Courts also supports my above view.
11. In Maguni Dei v. Gouranga Sahu, AIR 1978 Orissa 228 a Division Bench of the Orissa High Court considered the question as to whether Order XVIII Rule 3-A of the Code of Civil Procedure is directory, the learned Judges held that Order XVIII Rule 3-A is directory in nature.
12. In Bholanath v. Kalipada, a learned single Judge of the Calcutta High Court held that provision of Rule 3-A of Order XVIII is directory and not mandatory.
13. The next question that remains to be considered is whether the party who wishes to examine himself as a witness after his other witnesses have been examined, should file the application for permission of the Court before he commences his evidence or can he file the application even after examining one or more witnesses on his behalf? Having regard to the phraseology of the rule, it cannot but be said that the application has to be filed before a party leads his evidence for that will ensure strict compliance of the rule. But due to various reasons a party may not be in a position to seek prior permission to examine himself at a later stage, after examining his other witnesses. As the rule itself is silent as to when the application for permission should be made, in my view, the party leading the evidence of his witnesses before examining himself as a witness, does not forfeit his right to seek permission of the Court to appear as a witness at a later stage. Therefore, an application of a party seeking permission of the Court to appear as a witness, filed after the evidence of his witnesses has been led is maintainable. It is discretion of the Court to permit or not to permit the party to appear as a witness after recording the evidence of other witnesses of that party. Like any other judicial discretion, it has to be exercised in a fair and reasonable manner.
14. I may point out here that many rules in Order XVIII were amended by Amendment Act of 1976. It may be relevant to refer to sub-rule (4) of Rule 2, which was inserted alongwith Rule 3-A. Rule 2 prescribes the procedure for beginning of a case, how the hearing of the case should go on and how the evidence should be led. The newly inserted sub-rule empowers the Court to direct or permit any party to examine any witness at any stage notwithstanding the procedure prescribed in the sub-rule (sic. rule). If Rule 3-A is so interpreted as to hold that no application of a party can be entertained after he has examined one or more witnesses, if he wishes to appear as a witness, at that stage then such a construction will render sub-rule (4) of Rule 2 redundant. They have, therefore, to be read harmoniously. Reading the relevant rules of Order XVIII together, it has to be held that under Rule 3-A the Court has discretion to grant permission to a party to appear as a witness even after he has produced other witnesses on his behalf.
15. I have pointed out above that the intendment of Rule 3-A is to check the practice of leading the evidence of other witnesses and then appear as a witness to fill up the loopholes and the gaps in the evidence of other witnesses, which was prevalent before its insertion. Earlier this could have been done as a matter of right, but after the amendment this practice has been brought under control and now a party can appear as a witness after examination of his other witnesses only on being permitted by the Court on recording reasons. This interpretation is not only in accordance with the intendment of the amendment, but would also be in consonance of the principle that the rules of procedure are meant to facilitate and not to obstruct the administration of justice.
16. I shall now refer to the cases cited at the Bar.
17. In Kwality Restaurant v. Satinder Khanna, a Division Bench of the Punjab and Haryana High Court, on examining the scope of Order XVIII Rule 3-A, has held that the normal rule prescribed by the legislature is that a party appearing as his own witness should do so before examination of any one of his own witnesses and that the rule is not inflexible and may be deviated from with the permission of tine Court. The learned Chief Justice who spoke for the Division Bench observed thus:
“No specific stage is prescribed or fixed by the statute for securing its 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 sufficient ground is made out, he may secure such permission at a later stage.”
18. The learned Chief Justice of Patna High Court in Inderdeo Sah v. Dlwramdeo Mahto, allowed a revision petition filed against the order of the trial Court rejecting the application of the plaintiff to examine himself as a witness later than his other witnesses and granted him the permission prayed for.
19. In Marappa Gounder v. Sellappa Gounder, a learned Single Judge of Madras High Court took the view that if a party to the suit desires to be examined after examination of his other witnesses, he should seek prior permission before the other witnesses were examined, but if such permission had not been obtained, it could be sought later on at the time when the party is put in witness box. However, in Ayyasami Gounder v. T.S. Palanisami, another learned Judge of the Madras High Court took the view that the permission to examine a party as a witness after examination of other witnesses should be sought before the examination of other witnesses and not later. It appears that the judgment in Marappa Gonnder’s case, was not brought to the notice of the learned Judge. However, on the assumption that such a permission can be granted even later, the learned Judge found on the facts of that case that the reasons given by the trial Court for granting permission to the party to appear as a witness after examination of other witnesses, were not valid and sustainable.
20. From the above discussion, it follows that though as a rule a party who wishes to examine himself as a witness, should appear first as a witness on his behalf, but the Court has discretion to permit the party to appear as witness after the examination of his other witnesses. An application to seek permission for leading evidence has to be filed by the party before leading his evidence, but the Court is not precluded from granting permission having regard to the facts and circumstances of the case even when an application is filed after examination of the other witnesses.
21. In the instant case, the sixth defendant examined a witness as D.W.I. She herself appeared as D. W.2. After her examination-in-chief was recorded in part, an objection was taken for her appearing as a witness; at that stage she filed an application for grant of permission to appear as a witness. By the order under revision permission was granted to her. Reasons given by the trial Court cannot be faulted with.
22. For the above reasons, I do not find any illegality muchless error of jurisdiction in the order under revision warranting interference of this Court under Section 115 of the Code of Civil Procedure. The Civil Revision Petition is devoid of merits. It is accordingly dismissed, but in the circumstances of the case, without costs.