O. 18, R. 3-A, C.P.C. is directory and not mandatory. The court has the power to examine a party at a later stage, even though the party has not obtained the court's previous permission, if it is just and fair to do so.

Judgement

P. K. MOHANTI, J. :- This civil revision raises a point of considerable importance concerning the litigants and the legal practitioners frequently in trials before the subordinate courts. The question whether a party who has not examined himself as the first witness in support of his cause and has not obtained permission of the court to appear as such witness at a later stage as required under O. 18, R. 3-A, C.P.C., as amended by the Civil P. C. (Amendment) Act, 1976, can be examined at a later stage of the trial is the sole point for determination.

2. The amended rule runs 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, permits him to appear as his own witness at a later stage."

3. The brief facts in the present matter are these:

Opposite party No. 1 filed Title Suit No. 103 of 1974 against the petitioner and some others for declaration of title and recovery of possession in respect of the disputed property. On a petition filed by him, two of his witnesses were permitted to be examined on 11-3-77 obviously under the provisions of O. 18, R. 16, Civil P. C. The regular trial of the suit commenced on 15-1-77. On that day he filed a petition under O. 18, R. 3-A, C.P.C, seeking permission of the court to examine himself as a witness it a later stage on the ground that his witnesses who were in attendance on that day did not like to be detained. No order was passed on this petition, but two other witnesses for the plaintiff were examined. On 16-4-77 two more witnesses were examined on behalf of the plaintiff. On 19-4-77 the plaintiffs petition dated 15-4-77 was taken up for consideration and it was opposed by the petitioner on the ground that the plaintiff having failed to comply with the provisions of O. 18, R. 3-A, C.P.C. he had forfeited the right to examine himself and the court had no longer jurisdiction to allow him to be examined at a later stage. The trial court overruled the objection and allowed the plaintiff to examine himself even though he had not obtained leave of the court earlier. Then the plaintiff was examined on 20-4-77 and defendant No. 1 was allowed to cross-examine him without prejudice to his right to challenge the court s order dated 19-4-77 by way of a revision application.

4. This revision was placed for hearing before my learned brother Misra, J. who felt inclined to sustain the order of the trial court, but since a contrary view had been taken in a single Judge decision of this Court he referred it to a Division Bench for an appropriate interpretation of O. 18, R. 3-A of the Code.

5. The view taken in the single Judge decision reported in AIR 1978 Ori. 1 (Jagannath Nayak v. Laxminarayan Thakur) is that the provision of O. 18, Rule 3-A, C.P.C. is mandatory and that the court has no jurisdiction to permit a party to examine himself at a later stage in the absence of permission having been obtained at the commencement of the evidence of his side. In coming to this conclusion, the learned single Judga has relied on the use of the word "shall" and the legislative background of the provision. The learned Judge has also relied on a decision in the case of Smt. Gurdial Kaur v. Pyara Singh, AIR 1962 Punj 180.

6. Mr. B. H. Mohanty appearing for the petitioner relied on the decision of this Court referred to above and contended that the provision of R. 3-A is mandatary and if a party fails to comply with it, he forfeits his right to examine himself as a witness and the court also loses jurisdiction to permit him to examine himself at a later stage. Mr. N. Mukherjee appearing on behalf of the opposite parties has, on the other hand, contended that the provision is directory and does not take away the jurisdiction of the court to examine a party at a later stage if sufficient cause is shown for non-compliance of the provision.

7. The use of the word "shall" in a statutory provision