Permission of the Court for a party to appear as his own witness subsequent to his other witnesses can be sought at any stage, and if the Court finds merit in the same, it would not be debarred from acceding to such a prayer.

S.S.SANDHAWALIA, J.

1. Whether R.3-A of O.18 of the Civil P.C.envisages that permission of the Court for a party to appear as his own witness subsequent to his other witnesses must necessarily be obtained at the very commencement of the evidence and not later, is the rather significant question which fall for determination in this civil revision admitted to a hearing by the Division Bench.

2. It is unnecessary to advert to the facts in any great detail. It suffices to mention that the trial Court for adequate reasons accorded permission (despite objection raised on behalf of the defendant) to the plaintiff for appearing as his own witness on an application made by him apparently after he had already examined evidence in support of his case. This order is sought to be challenged primarily on the basis of the judgement reported as Jagannath Nayak V/s. Laxminarayan Thakur, AIR 1978 Orissa 1, which undoubtedly supports the case of the petitioner.

3. As the controversy must necessarily revolve around the provisions of the statute, it is reproduced for facility of reference :-

"R.3-A. Party to appear before other witnesses. 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."

4. Now a bare reference to the language of the aforesaid provision would make it manifest that the legislature has laid down the rule that a party appearing as his own witness must so appear before any other witness on his behalf has been examined. This rule is couched in terms mandatory. However, in equally express terms one exception to the said rule has also been provided by the legislature. This is that with the permission of the Court such a party for sufficient cause may be allowed to appear even at a stage subsequent to the examination of one or all of his witnesses. What is significant to note herein is that the language of the statute does not prescribe the precise time at which such permission is to be secured. It does not say that this must necessarily be in the very first instance before any witness has been examined on behalf of the party. One may say that the statute is, therefore, silent as to the stage at which this permission is to be secured. Nor can it be said that by necessary intendment the said permission must be sought at the very inception of the evidence and not later.

5. In construing a provision of the aforesaid nature it must necessarily be kept in the forefront that in essence it lays down a rule of procedure. As has been oft repeated, procedure is ultimately the handmaid of justice meant to advance its cause and not to obstruct the same. A procedural rule, therefore, has to be liberally construed and care must be taken that so strict an interpretation be not placed thereon whereby technicality may tend to triumph over justice. It has to be kept in mind that an overly strict construction may result in the stifling of material evidence if for one reason or another the party concerned fails to secure the permission at the very first instance. That cannot easily be ascribed to be the intent of the legislature in a matter essentially procedural.

6. With the aforesaid canon of construction in the background one may proceed to examine the argument raised on behalf of the respondent. Relying particularly on the last lines of the rule, i.e. "for reasons to be recorded, permits him to appear as his own witness at a later stage", it was contended by Mr. Bhagirath Dass that the words "at a later stage" may go well with the permission to be obtained as also with the sequence of the stage of the appearance of the party. It was in fact contended that the language of the statute if at all is plainly open to the construction that both the permission and the stage of appearance by the party may be later to the examination of some or all of his evidence. Without