Provision for examination of party/witness is directly and not mandatory.

The plaintiff, who is the revision petitioner herein, has filled a suit for specific performance against the respondent-defendant in respect of immovable properties. The suit was listed for trial and on 17th July, 1985, the plaintiff examined a witness as P.W.1 and the trial continued. The plaintiff did not examine himself as a witness on the date of the hearing. After the evidence of P.W.1 was over, he filed an application on 31st July, 1985 in I.A.No.1667 of 1985 requesting the Court to grant him permission to examine himself as P.W.2. In the affidavit, the plaintiff has stated that on the date of trial, i.e. on 17th July, 1985 one of the attestors to the agreement of sale was not available and that he himself was not well. He further stated that since the Court was not inclined to grant adjournment, he had to examine P.W.2 in the first instance. Learned District Munsif after hearing both parties, passed an order that as per the provisions of O.18, R.3-A the plaintiff had to examine himself as a first witness and, therefore, there is no provision in law to examine the plaintiff as a subsequent witness. Consequently, the petition was dismissed and the plaintiff has come on revision. He has also filed a civil miscellaneous petition and obtained stay of the part heard trial of the suit.

2. The question now before us is of some importance for the trial court and, therefore, it is necessary to cite the case law on the subject in some detail. 0.18, R.3-A (as added by the Amendment Act 104 of 1976) reads thus:

"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, permit him to appear as his own witness at a later stage."

It is clear from the above provision that the Court has got judicial discretion to permit a party to give evidence even after a witness has been examined, but then the court will have to state the reasons for permitting him to appear at a later stage. The reasons will have to be in writing. In the instant case, the trial court has not given any reasons for rejecting the application, except stating that O.18, R.3-A is a bar for examining a party as a witness subsequently. The lower Court in a short order dismissed the application holding that there is no provision in the Code under which a party, who has failed to examine himself in the first instance can appear as a witness. 1 have already extracted the relevant provisions of the Code of Civil Procedure, and it is clear therefrom that the Court has got judicial discretion to allow a witness to be examined at a later stage" provided the Court permits him after giving the reasons. The trial court wrongly thought that it has no discretion in the matter.

3. Learned counsel for the revision petitioner drew my attention to a ruling reported in Inderdeo Shah v. Sharamdeo Metha, A.I.R. 1981 Pat.260. I wherein it is stated that R.3.A of O.18 makes it clear that the rule does not lay down that if a petition is filed subsequently by the plaintiff for permission to be examined as a witness, ,the court has no power to entertain or allow such a prayer. This decision follows the Division Bench ruling of the Patna High Court reported in the case of Rames-war Sharma v. Sarju Prasad, (1979), B.B. C.J. 63 7. which has been extracted in that judgment. It is stated therein that there are no words in R. 3-A to indicate that an application for such permission had to be filed before the party examines his first witness. The Division Bench held that, in the absence of any restriction in this reard, it should be held that ordinarily an application for such permission can be made either at the initial stage or when the occassion arises. In Inderdeo v. Mehta, A.I.R. 1981 Pat-260, K.B.N. Singh, C.J., has observed that if a narrow interpretation is put on R.3-A, then this new provision will be rendered nugatory and, therefore, a harmonious construction should be take