1. This is a defendant's revision under Section 115 of the Code of Civil Procedure against the order dated May 25, 1978 of the learned Munsif, Churu passed in civil original suit No. 1 of 1977.
2. The plaintiff-non-petitioners No. 1 and 2 instituted a suit against the defendant-petitioner and defendant-non-petitioners No. 3 and 4 for realisation of a sum of Rs. 4,100/- in the Court of Munsif, Churu, on January 3, 1977. Separate written statements were filed on behalf of the defendant-petitioner and defendant-non-petitioner No. 3. Issues were framed on January 20, 1978. The plaintiffs were to lead evidence first on February 20, 1978. It may be mentioned here that February 20, 1978 was declared Holiday on account of 'Baravafat' and, therefore, the case was taken upon February 21, 1978. On that day, the statements of Bhera Ram (PW 1) and Hanumana Ram (PW 2) were recorded and the Counsel for the plaintiffs wanted to examine the plaintiffs on the next date. The court ordered that if the plaintiffs wanted to summon remaining witnesses; they may file PF and summonses within a week. The case was adjourned to March 23, 1978, plaintiffs along with witness Kaluram- (defendant No. 3) were present but the Counsel for the plaintiffs stated before the court that those witnesses would be examined on the next date. The Counsel for the defendants had no Objection and, therefore, the case was adjourned to April 13, 1978 for the plaintiffs evidence. On April 13, 1978, the plaintiffs were present and no other witness was present. On that day, it was stated that the plaintiffs besides themselves only wanted to produce the hand writing expert. On May 25, 1978, the Court ordered for the summoning of the hand writing expert and directed that the plaintiffs shall deposit Rs. 300/- on May 27, 1978 as the fee of the hand writing expert. On that day, an objection was raised by the learned Counsel for the defendants that on February 21, 1978, no permission was obtained for the examination of the plaintiffs subsequently as required by Order XVIII, Rule 3-A, C.P.C. The Court, however, ordered that on payment of Rs. 20/- as cost permission for examining the plaintiffs is granted. Aggrieved by the birder dated May 25, 1978, the defendant petitioner has filed this revision petition.
3. Having heard Mr. Bhagwati Prasad learned Counsel for the defendant-petitioner and Mr. Bhupendra Bhatnagar, learned Counsel for the plaintiff-non-petitioners No. 1 and 2, I am of opinion that the order dated May 25, 1978 under revision calls for no interference by this Court. Order XVIII, Rule 3-A, C.P.C. is as follows:
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.
Mr. Bhagwati Phasad, learned Counsel for the petitioner has placed reliance on Jagannath Nayak v. Laxminarayan Thakur AIR 1978 Ori. 1, wherein a learned single Judge of the Orissa High Court observed as under:
It is now clear that introduction of Rule 3-A and making it mandatory was obviously intended to serve administration of justice and not to stifle cause of justice. The trial court, therefore, has no further jurisdiction to permit a party to examine himself at a later stage in the absence of permission having been obtained at the commencement of his evidence.
In that case, the decision of Smt. Gurdial Kaur v. Pyara Singh AIR 1962 Pun. 180 was relied on. This decision was, however, overruled by a Division Bench of Orissa High Court in Maguni Dei v. Gaurango Sahu AIR 1978 Ori. 228. The Division Bench observed as follows:
Having given our careful consideration to all the contentions put forward by Counsel for the parties, we are clearly of the view that Order XVIII, Rule 3-A, is of directory nature. In proper case, 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.
In the light of our foregoing discussions we hold that the case in AIR 1978 Ori. I was not correctly decided and we overrule the same.
4. In Paramananda Fatesingh v. Labanya Bowa : AIR1979Ori132 , S. Acharya, J., while following Maguni Dei's case AIR 1978 Ori. 228, allowed an opportunity to the defendants to examine defendant No. 2 as a witness in that case on granting proper compensatory costs in favour of the plaintiffs.
5. The provisions of Order XVIII, Rule 3-A, C.P.C. came up for consideration before a Division Bench of the, Punjab & Haryana High Court in Kwality Restaurant, Amritsar v. Salinder Khanna . The learned Judges while dissenting from the view taken by a learned single Judge of the Orissa High Court in Jagannath Nayak's case AIR 1978 Ori. 1, made the following observations in para 7 of the report:
Broadly construed, therefore, the intention of the legislature appears to that the normal rule prescribed by the legislature now is that a party appearing is his own witness should do so before any one of his own witnesses. However, the rule is not inflexible and may be deviated from with the permission of the Court 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.
6. In Niranjan Lal v. Punjab State Electricity Board, Patiala 1978 PLR 412 a learned single Judge of the Punjab and Haryana High Court while considering Jagannath Nayak's case AIR 1978 Ori. 1 held as under:
With utmost respect to the learned Judge, I might observe that he has taken a rather narrow view of the provisions of a procedural statute which is meant to subserve the interest of justice. It is in the public interest that litigants should be allowed to have full say when they represent their respective cases before a Court of law. Merely because a party does seek the permission of the Court to appear as a witness, at an earlier stage does not and should not debar a Court from, considering his request favourably if he makes out a proper case for being granted the permission to appear as his own witness at a later stage. While doing so the Court should pay due regard to the nature of the controversy, the conduct of the parties, possible harm to his opponent if permission is granted to a, party and last of all whether the aggrieved party can be adequately compensated with costs or not.
7. A contention was raised in Mohd. Aqil v. Alimulla 1978 AII LJ 547 that the court below committed a manifest illegality and erred in the exercise of its jurisdiction in allowing the plaintiff to be examined after he had examined a witness of his and that the provisions of Order XVIII Rule 3-A, C.P.C were mandatory The learned Judge observed as follows:
I am unable to accept the above contentions. The provisions of Order XVIII Rule 3-A are directory. The Rule does not contain any penal provision to make it mandatory. Since the provision is directory, it is open, to, the trial court to grant or not (sic) grant an opportunity to a party to examine himself later.
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. Keeping the tests laid down in the aforesaid decisions of the Allahabad High Court, Punjab High Court and Orissa High Court in view barring aside Jagannath Nayak's case AIR 1978 Ori. 1 which has been overruled by a Division Bench of this Orissa High Court, I am of opinion that Order XVIII Rule 3A C.P.C is of directory nature and not mandatory. The Court has got power in a proper case to examine a party at a later stage even though that party has failed to obtain its previous permission as provided in Rule 3-A of Order XVIII. Having regard to the language of t the rule and particularly keeping in view that it does not contain any penal provision to make it mandatory, it was open to the trial court to grant permission to the plaintiff to examine himself even after the statement of his witness had been recorded. In the case in hand on February 21, 1978, the plaintiffs were present, and their Counsel, desired to examine them on the next date. No objection, was taken on that day that as they have not obtained previous permission from the Court prior to the examination of Bhera Ram (PW 1) and Mannaram (PW 2) they cannot examine themselves. The request of examining the plaintiffs was reiterated on March 23, 1978. On April 13, 1978, it was categorically stated that the plaintiffs, besides themselves wanted to examine the hand writing expert only. On March 29, 1978 on behalf of the defendant/defendants it was not submitted that as the plaintiffs have not obtained previous permission for examining themselves, they cannot be examined. It was only on May 25, 1978 an objection was raised that as the plaintiffs have not obtained previous permission as required by Order XVIII Rule 3-A C.P.C., they cannot be examined. On that day, it was submitted by the counsel for the defendants that he has orally stated so on February 21, 1978 but the learned Munsif, observed that in the proceedings of February 21, 1978, there is no mention as such. On payment of Rs. 20/- as cost's the learned, Munsif accorded permission for the examination of the plaintiffs. As the provisions of Order XVIII, Rule 3-A have been held to be directory by me, it was open to the learned Munsif to grant permission to the plaintiffs to examine themselves later. I am unable to agree with the learned Counsel for the petitioner that by according permission, the learned Munsif has committed any jurisdictional error, It may also be mentioned that it was not contended on behalf of the petitioner that the impugned order has either occasioned failure of justice or caused irreparable injury to the petitioner.
8. No case for interference with the revision petition has no force and it is, hereby dismissed. Having regard to the circumstances of the case, the parties are left to bear their own costs of this revision petition.
9. The result is that the, revision petition has no force and it is, hereby dismissed. Having regard to the circumstances of the case, the parties are left to bear their own costs of this revision petition.