P.K. Mohanti, J.
1. This civil revision raises a point of considerable importance concerning the litigants and the legal practitioners frequently in trials before the subordinate courts. The question whether a party who has not examined himself as the first witness in support of his cause and has not obtained permission of the court to appear as such witness at a later stage as required under Order 18, Rule 3-A, C.P.C., as amended by the Civil P. C. (Amendment) Act, 1976, can be examined at a later stage of the trial is the sole point for determination.
2. The amended rule runs thus:--
'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.'
3. The brief facts in the present matter are these:
Opposite party No. 1 filed Title Suit No. 103 of 1974 against the petitioner and some others for declaration of title and recovery of possession in respect of the disputed property. On a petition filed by him, two of his witnesses were permitted to be examined on 11-3-77 obviously under the provisions of Order 18, Rule 16, Civil P. C. The regular trial of the suit commenced on 15-4-77, On that day he filed a petition under Order 18, Rule 3-A, C.P.C. seeking permission of the court to examine himself as a witness at a later stage on the ground that his witnesses who were in attendance on that day did not like to be detained. No order was passed on this petition, but two other witnesses for the plaintiff were examined. On 16-4-77 two more witnesses were examined on behalf of the plaintiff. On 19-4-77 the plaintiff's petition dated 15-4-77 was taken up for consideration and it was opposed by the petitioner on the ground that the plaintiff having failed to comply with the provisions of Order 18, Rule 3-A, C.P.C. he had forfeited the right to examine himself and the court had no longer jurisdiction to allow him to be examined at a later stage. The trial court overruled the objection and allowed the plaintiff to examine himself even though he had not obtained leave of the court earlier. Then the plaintiff was examined on 20-4-77 and defendant No. 1 was allowed to cross-examine him without prejudice to his right to challenge the court's order dated 19-4-77 by way of a revision application.
4. This revision was placed for hearing before my learned brother Misra, J. who felt inclined to sustain the order of the trial court, but since a contrary view had been taken in a single Judge decision of this Court he referred it to a Division Bench for an appropriate interpretation of Order 18, Rule 3-A of the Code.
5. The view taken in the single Judge decision reported in AIR 1978 Ori 1 (Jagannath Nayak v. Laxminarayan Thaler) is that the provision of Order 18, Rule 3-A, C.P.C. is mandatory and that the court has no jurisdiction to permit a party to examine himself at a later stage in the absence of permission having been obtained at the commencement of the evidence of his side. In coming to this conclusion, the learned single Judge has relied on the use of the word 'shall' and the legislative background of the provision. The learned Judge has also relied on a decision in the case of Smt. Gurdial Kaur v. Pyara Singh, AIR 1962 Punj 180.
6. Mr. B. H. Mohanty appearing for the petitioner relied on the decision of this Court referred to above and contended that the provision of Rule 3-A is mandatory and if a party fails to comply with it, he forfeits his right to examine himself as a witness and the court also loses jurisdiction to permit him to examine himself at a later stage. Mr. N. Mukherjee appearing on behalf of the opposite parties has, on the other hand, contended that the provision is directory and does not take away the jurisdiction of the court to examine a party at a later stage if sufficient cause is shown for non-compliance of the provision.
7. The use of the word 'shall' in a statutory provision, though generally taken in a mandatory sense, does not always conclusively convey an imperative mandate. For the purpose of determining whether a certain provision of law is mandatory or directory it is not possible to lay down any universal rule. The answer would depend in every case on the particular circumstances placed for consideration. To enable the court to determine this question, the subject-matter of the provision of law has to be viewed in the light of the object of the enactment in question. The particular provision of law has to be read in the context of the scheme and purpose of the statute, and a conclusion has to be arrived at bearing in mind the consequence of non-compliance with the said provision of law. Crawford in 'Statutory Construction' (1940 Edn., Article 261, page 516) has observed :--
'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.'
In the case of Raza Buland Sugar Co. Ltd, Rampur v. The Municipal Board, Rampur, AIR 1965 SC 895 the Court observed (at p. 899) :--
'The question whether a particular provision of a statute which on the face of it appears mandatory -- inasmuch as it uses the word 'shall' as in the present case -- or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.'
In AIR 1974 SC 1682 at p. 1686 (In re, Presidential Election, 1974) the Court held:
'In determining the question whether a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed.'
8. The legislative history is no aid to the construction of the clear terms of a statute. It is only when the terms of the statute are ambiguous or vague that resort may be had to it for the purpose of arriving at the true intention of the legislature. If there is no ambiguity, reference to legislative history and to reasons for the introduction of the enactment are of no avail because the question for consideration then would be as to whether such history or reason has been clearly put in the language of the section of the statute under consideration. This view of ours is fortified by the following observations of the Supreme Court. In AIR 1957 SC 628 (B.M.D. Chamarbaugwalla v. Union of India) the Court observed (at p. 632):
'Our attention was invited by Mr, Seervai to the statements of objects and reasons in the Bill introducing the enactment. It is therein stated that the proposed legislation falls under Entry 34 of the State List, viz., 'Betting and gambling.' If we could legitimately rely on this, that would be conclusive against the petitioners. But, Mr. Palkhivala contends and rightly, that the Parliamentary history of the enactment is not admissible to construe its meaning, and Mr. Seervai also disclaims any intention on his part to use the statement of objects and reasons to explain Section 2(d). We must accordingly exclude it from our consideration.'
In AIR 1961 SC 493 (State of Punjab v. Sodhi Sukhdev Singh) it was observed:
'We ought, however, to add that though Mr. Seervai elaborately argued this part of his case he fairly conceded that recourse to extrinsic aid in interpreting a statutory provision would be justified only within well recognised limits; and that primarily the effect of the statutory provisions must be judged on a fair and reasonable construction of the words used by the statute itself.'
In AIR 1973 SC 1357 (Commr. of Income-tax, Madras v. Madurai Mills Co. Ltd.) the Court held (at p. 1361)
'It is well settled that considerations stemming from legislative history must not be allowed to override the plain words of a statute (see Maxwell on the Interpretation of Statutes, Twelfth Edition, p. 65).'
9. The provisions of Order 18, Rule 3-A are to be considered in the light of the above principles.
The object underlying the rule seems to be that by the examination of a party as the first witness his whole case may be unfolded and he may not be able to fill up the lacuna at the close of his evidence. When the case of a party is unfolded by his own evidence, the opposite party can effectively cross-examine the succeeding witnesses on the relevant point gatherable from the evidence of the adversary otherwise he cannot cross-examine the witnesses with regard to matters which are subsequently introduced in the evidence of the party himself. A bare perusal of the rule would show that under certain circumstances a party may appear as a witness after other witnesses on his behalf have been examined. All that is required is that he should, before examining his witnesses, seek permission to examine himself at a later stage and the court may grant such permission.
10. A directory provision is generally affirmative in its terms. But negative words are ordinarily used as a legislative device to make a statute imperative. If the requirements of a statute which prescribes the manner in which something has to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in a particular and specified manner and in no other, then those requirements are in all cases absolute and the neglect to obey or fulfil them exactly will invalidate the whole proceedings, (See Craies on Statute Law, Fifth Edition at p. 243). The provision of Order 18, Rule 3-A is couched in affirmative terms. It prescribes a certain procedure but imposes no penalty for its non-observance. The rule itself provides an exception and gives discretion to the court to permit the examination of a party at a later stage for reasons to be recorded by it. That indicates the anxiety of Parliament to ensure that the subordinate courts should not shut out evidence of a party which is necessary for a just decision of the case. It could not have been the intention of the legislature to debar the court from permitting examination of a party even though the just decision of the case demands it. The paramount consideration of the judicial process being the doing of justice to the parties, the Court can examine a party at a later stage if it considers the evidence essential despite some negligence on the part of a party.
11. In interpreting a Code of Procedure, it would be useful to keep in mind that the rules of procedure are intended to aid the administration of justice and not to hamper it. They should be used as aids rather than as obstacles. Lord Buckmaster once pointed out:
'All rules of court are nothing but provisions intended to secure proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose.'
The Supreme Court in State of Gujarat v. Ramprakash P. Puri, (1970) 2 SCR 875 indicated:
'Procedure has been described to be a hand-maid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause.'
As a general rule, evidence should never he shut out. Parties should be given full opportunity to give evidence if the justice of the case demands it, However negligent or careless may have been the omission of the litigant to examine himself at the commencement of the evidence of his side, the same should be allowed if that can be done without violence to the statute or irreparable prejudice to the adversary. There is no injustice if the other side can be compensated in terms of costs.
The following passages from the judgment of Bose, J. in the case of Sangram Singh v. Election Tribunal, Kotah, AIR 1955 ,SC 425 (426) are very apposite and may aptly be read here:
'Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.
Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to, But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible in the light of that principle.'
It is useful to quote the oft quoted passage of Lord Penzance in 4 AC 404 in this connection:
'Procedure is but the machinery of the law after all the channel and means whereby law is administered and justice reached. It strongly departs from its office when in place of facilitating, it is permitted to obstruct and even extinguish legal rights, and is thus made to govern when it ought to subserve.'
(Quoted from Aiyers Manual of Law Terms and Phrases, 7th Edn. at page 644).
12. The harm and inconvenience that will result from holding a provision to be mandatory should be weighed against the harm and inconvenience that will result from holding the provision as directory. The conclusion which results in greater harm should be avoided as that could not have been the intention of the legislature. Courts have been set up to administer justice and wide discretion has been vested in them so that the paramount purpose doing of justice to the litigating parties -- may not be frustrated. It is, therefore, a cardinal rule not to interpret a provision in a statute in a manner which abrogates judicial discretion unless Parliament has explicitly or by necessary intendment curtailed or withheld the same. If the provisions of the rule are held to be mandatory, grave hardship and injustice will be caused to the litigants. Without the evidence of the party himself justice cannot be done in most cases. If, however, the rule is held to be directory, a party, no doubt, will be put to some inconvenience but he will not go without any remedy. If the party examining himself at a later stage introduces new facts it will be open to the opposite party to ask the court to recall the witnesses for further cross-examination under Rule 17 of Order 18, C.P.C. and he can be compensated by costs.
13. In order to relax the stringency of the rule the learned single Judge observed in the case referred to above that it would be open to the party to get the order from the appellate court on appeal, if he loses the suit in that trial court, for his examination and the appellate court may grant permission and remit the suit. In our opinion, such a course is bound to involve undue delay, prolong litigation and subject the parties to unnecessary additional monetary burden and thus tend to retard the course of justice. Parliament could not have intended the mischief to be cured by such a process.
14. In AIR 1962 Punj 180 relied on by the learned single Judge, the Court while construing the provisions of Rules 1 and 2 of Order 18, C.P.C. did not lay down that granting permission to a party to examine himself after examination of his witnesses would affect the jurisdiction of the court. It was observed that normally speaking the plaintiff must first come to the witness box to depose to his case to be followed by corroborative evidence. The Court took notice of the prevailing practice according to which the parties generally come into the witness box at the end of their evidence so as to be in a position to fill in any blanks or lacuna which may have been left by their corroborative evidence and observed as follows (at P. 181):
'Though this practice may not be in positive contravention of the literal import or language of the statutory provisions, yet it is difficult to hold if such a practice is, conducive to better administration of justice.'
This decision does not support the conclusion that a party loses his right to examine himself after examination of his witnesses or that the Court ceases to have jurisdiction to permit a party to examine himself at a later stage.
15. The learned single Judge relied on the reports of the Law Commission for his conclusion that jurisdiction of the Court to permit the party to examine himself at a later stage of the trial was not there if such permission had not been obtained before the evidence of his side began. We have already observed that the historical background in the present case was not admissible for a true interpretation of the provision in the absence of ambiguity in the provision itself. Even if the reports were relevant, we do not find support for the conclusion that the recommendation in the fiftyfourth report clearly indicates that the provision was intended to be mandatory. At page 3 of the reported decision the learned Judge has quoted from the fiftyfourth report to the following effect:
'Since the proposed rule will be confined to ordinary cases, the hardships arising from special features of the case, should not present a problem.'
Rule 3-A, therefore, introduced the rule to be applied to ordinary cases and the hardship arising from special features of a given case was left to be dealt with in exercise of discretionary power of the Court. What the rule intended to emphasise upon was that ordinarily the party who wants to examine himself in support of his cause must come to the witness box as the first witness on his side and discretion is vested in the Court to make an exception. If the Court exercises the discretion in favour of the defaulting party it has to record reasons therefor. What was considered to be an obnoxious practice by Dua, J. in the Punjab case (AIR 1962 Punj 180) (supra) or by the Law Commission in its 54th Report, was intended to be avoided by requiring the party to examine himself first and leaving it to the Court to regulate the situation by sound exercise of judicial discretion. There is no justification, to hold that the Court loses jurisdiction to deal with the application of the defaulting party once it has not been made before evidence on his side began.
16. 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.
17. In the light of our foregoing discussions we hold that the case in AIR 1978 Ori 1 was not correctly decided and we overrule the same.
18. In the present case the trial court held that debarring the plaintiff not to be a witness for himself would cause hardship to him and in the interest of justice allowed the plaintiff to examine himself as his own witness. The order of the Court is not one without jurisdiction in view of what has been said above. In the facts of this case we are not in a position to agree with Mr. Mohanty that judicial discretion has been improperly exercised. It is also not shown that the petitioner has been prejudiced in any way by the order allowing the plaintiff to examine himself at a later stage.
19. In view of our foregoing discussions, we dismiss the civil revision, but in the circumstances without any order as to costs.
R.N. Misra, J.