A party who wants to appear as a witness in her own case, should so appear before any other witness on her behalf is examined, unless the court for reasons to be recorded, permits her to appear as her own witness, at a later stage.

JUDGMENT :

(Shampa Sarkar, J.) :

1. The revisional application has been filed challenging an order dated April 18, 2023, passed by the learned Additional District Judge, 13th Court at Alipore, District: South 24 Parganas, in Original Suit No.-39 of 2021.

2. By the order impugned, the learned court rejected an application filed by the plaintiff/petitioner, the propounder of the Will of late Dr. Parimal Banerji, seeking leave to appear as a witness at a later stage and for a further direction to summon Santanu Ghosh, an attesting witness, to first depose and prove the Will.

3. It was submitted by the petitioner that a declaration by Santanu Ghosh was filed along with the application for probate. As the contesting defendants did not admit the case of the petitioner, the petitioner had the right to begin in terms of Order XVIII Rule 1 of the Code of Civil Procedure. As the declarant/attesting witness signed the declaration, at the request of the plaintiff/petitioner, upon understanding his duties and obligations, the said attesting witness should be summoned first, in order to adduce evidence and prove the Will. For the reasons stated hereinabove, such prayer was made. It was urged that such procedure would be in consonance with the provisions of Section 68 of Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925.

4. The defendants opposed such application and submitted that as per law, the plaintiff should depose first and the evidence should proceed in terms of Order XVIII Rule 4 of the Code of Civil Procedure.

5. The learned Court, after contested hearing, rejected the claim of the petitioner on the ground that where a party wished to appear as a witness, he/she must appear before any other witness on his/her behalf, unless the court, was convinced that the party could be allowed to appear as his/her own witness, at a later stage.

6. The learned court held that the language of Order XVIII Rule 3A of the Code of Civil Procedure clearly provided that a party who wanted to appear as a witness in her own case, should adduce evidence first, unless there were compelling circumstances which would permit deviation from the said rule. While allowing deviation from the said rule, the Court was also required to record cogent reasons.

7. In the case in hand, the learned Court below did not find any reason to summon the attesting witness Santanu Ghosh to adduce evidence in order to prove the Will, before the petitioner deposed as PW1.

8. Having considered the nature of the suit and the pleadings, this Court finds that the plaintiff claims to be the sole executor of the last Will and Testament of Dr. Parimal Banerji. The application for probate and the declaration was filed. As the suit was contested and there was no admission of the petitioner’s case, the plaintiff had the right to begin. The plaintiff also wished to depose in respect of her own case.

9. Order XVIII Rule 2 of the Code of Civil Procedure, provides that the party having the right to begin must state her case and produce evidence in support of the issues which she has to prove. Order XVIII Rule 3A provides that where a party herself wishes to appear as a witness, she shall so appear before any other witness on her behalf is examined, unless the court for reasons to be recorded, permits her to appear as her own witness, at a later stage.

10. In this case, the defendants did not admit the case of the plaintiff. The plaintiff had the right to begin. As the plaintiff wished to be examined as a witness of her own case, in terms of Order XVIII Rule 3A CPC, the plaintiff should adduce evidence first and lay the foundation of her case. Although Ms. Chakrabarty relies on Section 68 of the Indian Evidence Act, 1872, in my view the said provision is not a deviation from the procedure laid down in the Code of Civil Procedure discussed above.

11. According to the provisions of Section 68 of the Evidence Act, the Will shall not be used as evidence, unless one of the att