C.B. Bhargava, J.
1. The point for determination in this revision by the defendant is whether a party who has not examined himself as a first witness and has not obtained permission of the court to appear as his own witness at a later stage as required by Order 18, Rule 2(4) as amended by Rajasthan High Court, can be examined as a witness or not.
2. Sub-rule (4) made by the Rajasthan High Court, is as follows:
Where a party wishes to appear as a witness he shall so appear before any other witness on his behalf has been examined; provided that the Court may on an application made in this behalf and for reasons to be recorded, permit him to appear as his own witness at a later stage.
3. Plaintiffs-non-petitioners filed a suit for ejectment, rent and damages against the petitioner on 3rd January, 1962 in the court of the Additional Munsif, No. 2 Jaipur City. After the written statement had been filed, issues were framed on 26th July, 1962, and the case was adjourned for plaintiffs' evidence to 6th November, 1962. The plaintiffs were directed to file a list of witnesses which they did within the prescribed period and also included their names there in. On 6th November, 1962, plaintiffs and their witnesses were present, but as the court was pre-occupied in hearing arguments in another case, the case was ordered to be adjourned to 7th January, 1963. But before the order was signed, statement of Suraj Narain witness an employee of the Municipal Council, Jaipur, was recorded. The order sheet dated 6th November, 1962 is as under:
6&11&62 odqyk; QjhdSu mifLFkr gS ] vkt ,d dsl es cgl v/kwjh lquh x;kh lgknr gsrq le; ugh gS eqdnek vk;Unk okLrs lgknr oknh fnukad 7&1&63 dsk is'k gks A rkjh[k 6&11&62 dks c;ku lqjtukjk;.k fy;s x;s A ckfd;k lgknr oknh fnukad 7&1&63 dks is'k gS A
There after though the case was adjourned several times, no evidence was recorded. When the case came up again before the court on 22nd July, 1964, and the plaintiffs wanted to examine themselves as their own witnesses, objection was raised on behalf of the defendant relying on the provisions of Sub-rule 4 to Rule 2 of Order 18, that the plaintiffs having failed to comply with the said provision, have lost their right to examine themselves. On behalf of the plaintiffs an affidavit was filed that it was the with consent of the defendant's counsel that Surajnarain's statement was recorded on 6th November, 1962, and that it was agreed that the plaintiffs would be examined on the next date and that the court had also given permission for it. This fact was controverter by the defendant's counsel in bis affidavit and the learned Munsif found that the above contention of the plaintiffs was wholly incorrect. He therefore, refused to examine the plaintiffs though the other witnesses produced by them were examined. There after the defendant's evidence was recorded and the court after hearing arguments, dismissed the plaintiffs' suit.
4. It may be noted that the suit for ejectment was based on the personal necessity of the plaintiffs.
5. The plaintiffs preferred an appeal against the said decree and the learned Senior Civil Judge, No. 2, Jaipur City holding that Sub-rule 4 was a technical one and should not have been applied mechanically came to the finding that the lower court had decided the case on incomplete evidence and should not have refused to examine the plaintiffs. In this view of the matter, the decree of the lower court was setaside and the case was remanded to the trial court for redecision after taking the statements of the plaintiffs. It is against this order that the defendant has come up in revision to this Court.
6. It has been contended on behalf, of the petitioner that Sub-rule 4 is imperative and if any party fails to comply with it, he loses his right to examine himself as a witness at a later stage. Mr. Gupta on the other hand urges that Sub-rule 4 is directory and does not take away the jurisdiction of the court to examine a party at any stage of the case if sufficient cause is shown for non-compliance of the sub-rule.
7. A directory statute, generally affirmative in its terms, recommends a certain act or omission, but imposes no penalty on non-observance of its provision.
8. However, in order to determine whether a particular provision is mandatory or directory in nature, no; universal test can be laid down. As pointed out by Lord Campbell in Liverpool Borough Bank v. Turener 1861 30 L.J. Ch. 379:
There is no universal rule to aid in determining, whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the court to try to get at real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.
Similarly, it was observed by the Supreme Court in Raza Buland Sugar Co., Ltd., Rampur v. The Municipal Board, Rampur : 1SCR970 that:
The question whether a particular provision of a statute which on the face of it appears mandatory in, as much as it uses the word 'shall' 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 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.
This then brings us to the examination of this rule in the light of what has been said above, whether it is mandatory or directory. It appears that before Sub-rule 4 was added a general practice prevailed in the lower courts to permit a party to appear as his own witness after other evidence had been produced. It was to stop this practice that Sub-rule 4 was inserted so that a party who wished to examine himself as a witness should appear as a first witness unless he takes permission of, the court to appear at u later stage. The object underlying the said rule seems to be that by the examination of a party as a first witness, his whole case maybe 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 statement, the opposite party also can effectively cross-examine the succeeding witnesses on the relevant, points, otherwise he cannot cross-examine the witness with regard to matters which are subsequently introduced in the evidence of the party. But that does not mean that a party forfeits his right to examine himself as a witness if he fails to comply with the said provision. 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. Besides this the rule does not prescribe the consequences for its non-observances. A mechanical observance of this rule would result in grave hardship and injustice to the litigants. Learned Counsel for the petitioner laid much stress upon the word 'shall' which has been used in the sub-rule to show that it was intended to be imperative. In to first instance as already stated, the rigor of the rule is relaxed by the proviso itself-Moreover, the nature of the rule whether it is mandatory, or directory does not depend upon its form alone and the word 'shall' is not always used, in a mandatory sense. In Sainik Motors, Jodhpur and Ors. v. State of Rajasthan 0065/1961 : 1SCR517 , it was observed by the Supreme Court.
It is, however, contended that though the section creates an option, the Rules and the notification make the payment compulsory, and attention is drawn to the word 'shall' used both in Rules 8 and 8-A and the notification, where as the words in the two provisions to Section 4 are 'may accept' The word 'shall' is ordinarily mandatory, but it is sometime not so interpreted if the context or the intention otherwise demands. In re Lord Thurlow; Ex-parte Official Receiver, 1895-1 Q.B. 724, Lord Esher, Mr. R., observed at p. 729 that 'the word 'shall' is not always obligatory. It may be directory' and Lopes L,J. at p. 731. added:
It is clear that the word 'shall' is not always used in a mandatory sense. There is abundance of authority to the contrary in cases where it has been held to be directory only.
It was thus that the word 'shall' was held to be directory only, in that case, by Coutts Trotter, C.J., in Manikam Pattar v. Nanchappa Chettiar 1928 Mad. WN 441, by Russel, J., in Rustom v. H. Kennedy ILR 26 Bom 296; Rustom Jamsehed Irani; In re. 3 Bom LR 653, by Venkatasubba Rao, J., in Jethaji Peraji Firm v. Krishanayya, ILR 52 Mad 648 at p. 657; AIR 1930 Mad 278 at p, 280, and by the Judicial Committee in Burjore and Bhavano Pershad v. Mt. Bhagana, 11 Inc Appeal 7 (P.C.)
In K. Venkataramiah v. A. Seetharama Reddy and Ors. : 2SCR35 where Order 41, Rule 27(2) came up for consideration before the Supreme Court it was held;
The ommission to record the reason must, therefore, be treated as a serious defect. Even so, the provision is not mandatory and the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission. It is true that the word 'shall' is used in Rule 27(2); but that by itself does not make it mandatory.
Learned Counsel for the petitioner further relies upon a decision of this Condition Ms. Tulsi Bai v. Chunilal 1964 R.L.W. 253, where the Court was considering whether Order 16, Rule 1 was mandatory or not. But that decision has no application in the present cat, because it rested on the language of that rule itself. There Sub-rule (2) was couched in a negative or prohibitive from and so the court came to the finding that the rule was mandatory. But it is not case here. The present rule is not in the negative form nor there are any consequence provided for failure to comply with the rule and besides it also gives power to the court to examine a party at a late stage when such permission is sought.
9. Procedure, as has been well said is but the hand maiden of justice and no rules of procedure as such can be allowed to thwart the ends of justice. In proper cases the courts would inspite of the rule of procedure have the power to deal out justice between the parties. The Supreme Court in Sangram Singh v. Election Tribunal Kotah and Anr. : 2SCR1 observed;
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. To technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is doue to both sides) lest the very means designed for the furtherance of justice used to frustrate it. 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 reasonable possible, in the light of that principal.
Sub-rule (4) in my view cannot be read as an exeption to the above quoted principle without the evidence of the party himself justice cannot be done in most cases. I am therefore of the view that Sub-rule (4) of Order 18 Rule 2 is of directory nature and in proper cases court has got power to examine a party at a late stage even though he has not obtained court's previous permission as provided in the sub-rule.
10. Besides this the order of the trial court dated 6th November, 1962 quoted above show another case, no evidence was to be recorded in this case and an order to that effect was written on the order sheet. But it seem that at the request of the party Surajnarain's statement was recorded as it was of a formal character and the case was adjourned to the next date for the plaintiffs evidence. Although the Plaintiffs did not seek permission of the court to examine themselves at a later stage, but it can safely be inferred that there was an implied permission of the court to record plaintiffs statement on the next date though no reasons were recorded as required by Sub-rule (4), but the party cannot be punished for this omission. It is true that when this question was raised the plaintiffs came out with a false allegation that the counsel for the defendant as well as the court had agreed to examine the plaintiffs on the next date. But that by itself should not deprive the plaintiffs to examine themselves in view of the other reasons stated above. The Senior Civil Judge was, therefore, right in sending the case back and directing the court to examine the plaintiffs. The learned Judge has however, remanded the case under his inherent powers and has therefore, set aside the judgment and decree of the lower court. The lower court will, therefore, besides recording the statement of the plaintiffs or plaintiff as the case may be, shall also give opportunity to the defendant is produce evidence in rebuttal.
11. In view of what has been stated above, the revision application is rejected. But in the circumstances of the case parties shall bear their own costs.