Saphi Mohammad vs Ram Jiyawan And Ors. on 24 August, 2000

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Madhya Pradesh High Court
Saphi Mohammad vs Ram Jiyawan And Ors. on 24 August, 2000
Equivalent citations: 2000 (4) MPHT 454
Author: D Misra
Bench: D Misra


Dipak Misra, J.

1. Invoking the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) the plaintiff petitioner has called in question the legal validity of the order dated 13-3-2000 passed by the learned 4th Civil Judge, Class-II, Rewa in C.S. No. 264-A/1995.

2. The facts as have been unfolded are that the plaintiff initiated civil litigation being C.S. No. 264-A/95 for declaration and possession of the suit land. After commencement of the hearing of the suit it was posted on 15-9-99 for the evidence of defendant No. 2. On that day the defendant No. 2 did not examine himself but examined one Tahir Ali without taking leave of the Court. The learned Trial Judge examined Tahir Ali and adjourned the matter for further hearing to another date. Thereafter the plaintiff filed an application that as Tahir Ali had been examined before examination of defendant No. 2 without leave of the Court the evidence of defendant No. 2 should be foreclosed. The learned Trial Judge by the impugned order dealt with the said application and came to hold that on 15-9-99 the Court had granted permission to the defendant No. 2 and the said fact was not objected to by the plaintiff. Being of this view the learned Trial Judge rejected the application preferred by the plaintiff.

3. Assailing the impugned order it is contended by Mr. Ajay Sharma, learned counsel for the petitioner that the order dated 15-9-99 does not show that any permission was granted by the Court below to examine Tahir Ali before examination of defendant No. 2 and hence, the reasoning ascribed by the Court below in his order dated 13-3-2000 is against the material on record and, therefore, the impugned order is vulnerable. It is also urged by him that the provision enshrined under Order 18 Rule 3-A is mandatory and as there has been violation thereof the evidence of the defendant No. 2 has to be foreclosed.

Combating the aforesaid submissions it is canvassed by Mr. A.K. Pandey, learned counsel for the non-applicants that the provision engrafted under Order 18 Rule 3-A is not mandatory but directory and the Court has the jurisdiction to permit the party to examine himself as a witness at a later stage. He has however, accepted the fact that by order dated 15-9-99 the Court had not given any written permission. The further submission of the learned counsel is that a party can take permission later on and examine himself and such grant of permission is dependent on the discretion of the Court.

4. To appreciate the rival submissions raised at the Bar it is apposite to refer to Order 18 Rule 3-A of the Code. It reads as under :

“Order XVIII. Hearing of the suit and examination of witnesses.–Rule 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 his own witness at a later stage.”

On a bare reading of the aforesaid provision it is crystal clear that the certain duty is cast on the Court to record reasons for permitting a party to appear as its own witness at later stage. In the case at hand it is quite apparent that no reasons have been recorded. The heart of the matter is whether the Court can grant permission to the defendant at a later stage. The submission of Mr. Sharma is that the provision is mandatory is not acceptable as it is well settled in law that the aforesaid provision is a directory one and discretion is vested with the Court to permit examination of the party at a later stage after examination of the other witnesses. The aforesaid rule envisages that a party can examine himself at a later stage by leave of the Court. In this context, I may profitably refer to a decision rendered in the case of Maguni Dei v. Gouranga Sahu, AIR 1978 Orissa 228, wherein the Division Bench expressed thus :

“Having given our careful consideration to all the contentions put forward by counsel for the parties, we are clearly of the view that Order 18 Rule 3-A is of directory nature. In proper cases the Court has got power to examine a party at a later stage even though he has not obtained the Court’s previous permission as provided in the rule. If a party has acted in good faith and it is just and fair to permit him to examine himself at a later stage, the Court is not absolutely helpless in the matter.”

5. The same view was followed in the case of Khadi Kissan v. Thurba Kissan and Anr., AIR 1988 Orissa 55. This Court in the case of Ramchandra v. Bhagwandas, 1993 (1) MPWN 46, has held that allowing a party to appear as a witness after examination of his other witnesses is within the discretion of the Court.

6. Thus it is quite clear that with the leave of the Court the party can examine himself at a later stage. It is apparent that the rule does not stipulate any stage where the permission is to be granted. In the case at hand admittedly no permission was granted. The Court below has fallen into error by observing that oral permission was granted. Be that as it may, that cannot be the reason to foreclose the evidence of defendant No. 2. It is worth noting here that in the meantime defendant No. 2 has expired. Therefore, if the legal heirs desire to examine themselves, they may file an application for grant of leave to examine themselves and, the trial Court would exercise its discretion and pass appropriate orders. Such an action would be in consonance with the provisions of the Code.

7. The civil revision is accordingly disposed of without any order as to costs.

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