Order 18 Rule 3A of the CPC does not require a party to obtain permission from the court before examining their first witness; permission can be sought at a later stage, but the court has the discretion to grant it based on the party's reasons.

V. D. Misra, C. 3.—This judgment will dispose of Civil Revision Nos, 178, 189, 199, 209, 216 and 217 of 1980 since common question of law arises in these petitions.

2. Whether a party who wishes to appear as a witness is required to obtain the permission of the court to appear at a later stage before any other witness on his behalf has been examined or the party can ask for the permission at any stage before concluding his evidence? Is the question which falls for determination in these revisions. The facts are rot relevant. Suffice it to say that in all the cases either the plaintiff or the defendant did cot ask for permission to examine himself at a later stage before examining his witnesses. The trial court has refused permission in view of the judgment of a learned single Judge of this Court in Civil Revision No. 197 of 1979, Chet Ram v. Rajinder Kaur, decided on 7th May, 1980, where the learned Judge, following a judgment of a learned single Judge of the Orissa High Court in Jagannath Nayak v. Laxminarayan Thakur, [AIR 1978 Orissa 1]. held that rule 3 A of Order 18 of the Code of Civil Procedure requires a party to obtain the requisite permission before examining his witnesses. As a Division Bench of Orissa High Court has since overruled the case of Jagannath Nayak, the matter has been referred to a Division Bench of this Court.

3. In the trial of civil suits a practice had grown up to examine the party after the party had examined his witnesses. This perhaps was done in order to fill up the lacuna left by the witnesses. This practice was, from time to time, frowned upon but since the law gave a right to the party to produce and examine his witnesses in the manner he liked the practice could not be curbed. The Law Commission in order to curb this practice, in its 54th Report recommended : "18.3. 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. The Commission, in its Report on the Code, however, considered it unnecessary to make any such statutory provision. It noted that this should be the ordinary rule, but thought that a rigid provision on the subject would not be desirable. 18.4. 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."

4. The result of the recommendation was the addition of rule 3A in Order 18 of the Code of Civil Procedure. Rule 3A reads ; "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.

5. No doubt this rule is mandatory. It enjoins upon a party, who wishes to appear as a witness, to examine himself first before examining any other witness on his behalf. However, an exception has been made. The court has been given the discretion to allow a party to examine himself later on after examining one or more witnesses on his behalf. But we do not find anything in this rule which compels a party to ask for the requisite permission from the court before he examines his first witness. We cannot overlook the fact that the rule is a procedural one. It is meant to curb a particular evil for the enhancement of justice. It has to be interpreted in such a manner that while the evil is curbed, it does not lead to any injustice.

6. Now it may happen in a particular case that a party bona fide believes that it is not necessary for him to examine himself as his own witness. But developments may take place after he has examined his first witne