A court has the discretion to allow any witness to be examined in a case at any stage before the delivery of the judgment.

Judgement

ORDER :- The impugned order enables the plaintiffs, opposite parties in this case, to examine a pleader-surveyor as plaintiffs witness whose survey report has already been filed in the court below. On 2-9-77 when the suit was part-heard and adjourned to 6-9-77 for examining witnesses, the plaintiffs filed a petition praying for deputing a survey-knowing Commissioner to measure the disputed area. A copy of that petition had been served on the defendants, the petitioners in this case. That petition could not be disposed of on that day and was taken up for consideration on 6-9-77. On 6-9-77 the court examined further witnesses for the plaintiffs, but rejected the said petition. While rejecting that petition it mentioned in the order sheet that the plaintiffs were at liberty to take out a private Commissioner for the above purpose and may submit his report in court within two days. The plaintiffs thereafter took a pleader-surveyor for the measurement of the disputed area, and his report was submitted on 12-9-77 within the extended period allowed by the court. On 15-9-77 the plaintiffs filed a petition to enable them to examine that survey-knowing advocate in that suit. The court by the impugned order has allowed the said petition.

2. Mr. Das, the learned counsel for the petitioners contends that the court, after rejecting the prayer of the plaintiffs on 6-9-77 for directing a survey-knowing Commissioner to measure the disputed area, could not have allowed the plaintiffs to examine the private pleader-surveyor at this stage of the suit. Mr. Das further states that the court acted illegally in asking the plaintiffs to take a private Commissioner to measure the disputed area after rejecting the plaintiffs previous application dated 2-9-77 for appointing a survey-knowing Commissioner for that work. It is incorrect to state that the court below at any point of time asked the plaintiffs to take a private Commissioner in this case. While rejecting the aforesaid petition dated 2-9-77 of the plaintiffs for appointment of a survey-knowing Commissioner by the court, the court merely observed that the plaintiffs were at liberty to take a private Commissioner for that purpose. Therefore, the court never asked or gave any direction to the plaintiffs in this matter. After the pleader-surveyor did the measurement, his report was submitted in the court and after the submission of the said report the plaintiffs made a prayer to the court to allow the said pleader-surveyor to be examined as a witness on behalf of the plaintiffs. The court on a consideration of the facts and circumstances of the case as mentioned in the impugned order has allowed the said prayer. In this Civil Revision against the said order I have at first to see if the court was legally competent and had the jurisdiction to pass the said order or not.

Sub-rule (4) of R. 2 of O. XVIII in the amended Civil P. C. is as follows :-

"Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage."

Previous to this, R. 2 of O. XVIII, C.P.C. as it stood amended by this Court was as follows :-

"Explanation :- Nothing in this rule shall affect the jurisdiction of the Court to direct any party to examine any witness at any stage, for reasons to be recorded by the court in writing."

From the above provision it is quite evident that the court has the jurisdiction to direct or permit any party to examine any witness at any stage. So, the court was legally competent and acted within its jurisdiction to pass the impugned order.

3. Mr. Das contends that the court was not legally justified in allowing the plaintiffs to examine this witness after rejecting the plaintiffs prayer to appoint a court surveyor for that work and after closing the hearing of the case on 6-9-77. It appears from the order sheet of the suit that the court did not entertain the plaintiffs prayer to appoint a court surveyor for the job