Orissa High Court
Swami Hari Harananda Giri vs Yogoda Satsangha Society Of India And ... on 9 March, 1990
Equivalent citations: AIR1991ORI75, AIR 1991 ORISSA 75
ORDER K.C. Jagadeb Roy, J.
1. After receipt of all the records by the trial court after conclusion of Civil Revision Nos. 1116 and 1117 of 1989 in this Court, the parties excepting Defendant No. 2 appeared before the lower court on 19-2-90 as per the direction of this Court and the case was directed to be put up on the next day i.e. 20-2-90 for appearance of defendant No. 2. On 20-2-90 defendant No. 1, the present petitioner filed a petition praying for a direction that the plaintiff be directed to examine the Secretary of Yogoda Satsanga Society of India first in view of the changed circumstances. In the order dated 6-2-1990 this Court directed that the question of examination of the Secretary of the plaintiff's society be reconsidered afresh notwithstanding the previous orders since the situation in the meanwhile has changed.
2. Earlier the trial court by the order dated 23-9-89 allowed that the examination of the plaintiff to be deferred and permitted the plaintiff to examine his other witnesses first on the application filed on behalf of the plaintiff on the ground that the Secretary of the Society who is the plaintiff was sick and unable to attend the Court. It was not disputed that on 12-12-89, the plaintiff had appeared in the court below for swearing an affidavit. Accordingly an application was filed on the next day i.e. 13-12-89 by defendant No. 1 with a prayer to the court that since the plaintiff was hale and hearty and was available in the court, the order dated 23-9-89 he recalled and he should be examined first as a plaintiff's witness in accordance with Order 18, Rule (3 A) of the Code of Civil Procedure. That application of defendant No. 1 was rejected on the same day by the trial court.
3. On 20-2-90, defendant No. 1, the present petitioner renewed his prayer after case was sent back to the lower court after disposal of the civil revision Nos. 1116 and 1117 of 1989 in this court with a direction to reconsider the question of examination of the plaintiff as a first witness afresh in view of the changed circumstances. Objection was filed to that application. The case was put up on 22-2-90 for hearing. The objection raised by the plaintiff was that, prior to filing of the second application by defendant No. 1, there has been an order passed by the trial court on the application of the plaintiff that another witness by name Swami Baidyanath Giri who was very old and was due to leave Ranchi on the 15-3-90 for Himalayas was to be examined first and since unnecessary delay might be caused by examining the plaintiff first which may take a long time, that would result in delay in examination of the witness namely Swami Baidyanath Giri whose examination was very important in the case. It was, therefore, seriously urged by the plaintiff that there should not be an order of the trial court directing examination of the plaintiff first in preference of the examination of the other witness of the plaintiff namely Swami Baidyanath Giri. After hearing the petitioner namely defendant No. 1 and the plaintiff-Opp. Party in the case, the Subordinate Judge. Puri rejected the application of Defendant No. 1 for examination the plaintiff first before examination of the said witness of the plaintiff by his order dated 22-2-90. Against that order the present revision has been filed by the defendant No.1 as the petitioner.
3-A. Order 18, Rule 3A of the C.P.C. reads as follows:
"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. A Division Bench of this Court in the case of (Maquni Dei v. Gouranga Sahu), AIR 1978 Orissa 228 has examined this rule and held thus:
"Having given our careful consideration to all the contentions put forward by counsel for the parties we are clearly of the view that Order 18, Rule 3-A is of directory nature. In proper cases the court has got power to examine a party at a later stage even though he has not obtained the Court's previous permission as provided in the rule."
It further held in paragraph 10 of the judgment: " XX XX
The provisions of Order 18, Rule 3-A is couched in affirmative terms. It prescribes a certain procedure but imposes no penalty for its non-observance. The rule itself provides an exception and gives discretion to the court to permit the examination of a party at the later stage for reasons to be recorded by it."
5. In another case reported in (1986) 62 Cut LT 522 : (AIR 1988 Orissa 55) this Court also held that Order 18, Rule 3-A is directory and not mandatory.
6. Pursuant to the direction of this Court passed in Civil Revn. Nos. 1116 and 1117 of 1989 dated 8-2-90, the trial court has considered afresh the examination of the plaintiff as the first witness for himself and allowed the contention of the plaintiff to defer his examination as plaintiffs witness till another witness namely Swamy Baidyanath Giri had been examined. The court has given reasons in terms of Order 18, Rule 3-A of the C.P.C. for so allowing the plaintiff to be examined later. There is no infirmity in the procedure adopted by the Court below. The court has also observed in the impugned order that pursuant to the earlier order of the trial court in connection with examination of the said witness Swamy Baidyanath Giri, necessary fees had already been deposted in the court. Taking into consideration the convenience of the lawyers appearing in the court and the Commissioner who has to go to Ranchi and the target date fixed by this Court for disposal of the suit, the trial court has already fixed the date for examination of Swami Baidyanath Giri.
7. In the circumstances discussed above, I do not find any merit in this civil revision and the civil revision is accordingly dismissed, but in the circumstances there shall be no order as to costs.