SUDHINDRA MOHAN GUHA, J.

( 1 ) THE present application for revision arises out of orders dated 28-1-1981 passed by Sri T. K. Paladhi, Munsif, 3rd Court, Burdwan in Title Suits Nos. 103 of 1975 and 26 of 1977 heard analogously.

( 2 ) T. S. No. 103 of 1975 was instituted by the petitioners against the opposite party for eviction on declaration of their title and other reliefs whereas T. S. No. 26 of 1977 was filed by opposite party against the petitioners for declaration of his title and other reliefs. Both the suits were taken up for hearing and the petitioners closed their evidence. On 14-1-81 the opposite party examined certain witnesses without examining himself on filing an application under Order 18, K. 3a for permission of the Court to appear as a witness at a later stage. On 28-1-1981 the petitioners filed an application under Order 18, Rule 3a stating that the petitioners would be prejudiced if the opposite party is allowed to appear as a witness at a later stage, when he got the copies of depositions made by his witnesses. Thereafter on the same date the opposite party came up with an application under Order 18, Rule 3a on the plea that he had obtained verbal permission on 14-1-81 but no formal application was filed through mistake. But no such application was filed even on 17-1-81, the adjourned date of hearing.

( 3 ) BY the impugned orders the learned Munsif rejected the application filed by the petitioner and allowed that of the opposite party permitting him to depose holding that oral permission had been granted earlier.

( 4 ) IT transpires from record that on 17-1-81 the petitioner filed an application to the effect that the defendant was to examine himself first, before closing of the evidence of D. W. 3 who was being examined on commission. That prayer was allowed; and on the next day, that is on 18-1-81 the defendant opposite party sought permission of the Court to examine himself by a regular application.

( 5 ) IT is contended by Mr. Biswas that the Court had no jurisdiction to allow the opposite party to examine himself as a witness after examination of several witnesses on his behalf and the impugned order was contrary to the provisions of Order 18, Rule 3a of the C. P. C. Mr. Biswas argues that in order to avoid harassment by a manoeuvre or tact of a party Law Commission recommended amendment of the C. P. C. The Fourteenth Report had recommended that ordinarily, a party who wishes to be examined as a witness should offer himself first, before the other witnesses are examined. Fifty-fourth Report of the Law Commission contains the following recommendations:-- "we think that the amendment recommended in the 14th Report should be carried out. Since the proposed rule will be confined to ordinary cases, the hardships arising from special features of the case, should not present a problem. Having regard to the persistent and notorious malpractice indulged in by litigants in this respect -- malpractice which borders on dishonesty -- we think that the time has come to insert a statutory provision". So insertion of Rule 3a in Order 18 was recommended.

( 6 ) IT is thus contended by Mr. Biswas that the intention of the Legislature in accepting the recommendation of the Law Commission was to make it mandatory. He lays stress on the word "shall", which in the absence of anything else to construe otherwise is mandatory. According to him permission must be obtained from the Court before examining any witness on behalf of a party and not after violating the provision, because in that case the other party would be put to harassment and thus frustrating the very purpose of introduction of the provision. In support of his contentions he relies on the single Bench decision in the case of Jagannath Nayak v. Laxminarayan Tha-kur, reported in AIR 1978 Orissa 1, wherein it is held that permission of the Court must be sought for at the time when the party is to commence leading his evidence and not after violating the provisi

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