Patna High Court
Inderdeo Sah vs Dhramdeo Mahto And Anr. on 18 February, 1981
Equivalent citations: AIR1981PAT260, 1981(29)BLJR729, AIR 1981 PATNA 260, 1981 BBCJ 391 (1981) 2 RENCR 638, (1981) 2 RENCR 638
ORDER K.B.N. Singh, C.J.
1. This revision application is directed against an order dated the 19th March, 1979 of the learned Munsif, Arrah, rejecting the petition of the plaintiff-petitioner dated the 17th March, 1979, praying to examine him as a witness in the case.
2. The plaintiff has filed a suit for eviction of the defendants and the 9th March, 1979, was the date fixed for examining the witnesses on behalf of the plaintiff, on which date 3 witnesses on his behalf were examined. On the next date, i.e., the 10th March, 1979, two more witnesses on behalf of the plaintiff were examined and the suit was adjourned to the 16th March, 1979. On the 17th March, 1979, the plaintiff filed a petition under Order XVIII, Rule 3A of the Code of Civil Procedure (hereinafter referred to as the Code), stating that on the 9th March, 1979, he was suffering from dysentery and could not come to court and, therefore, was not examined, and, as his evidence was essential in the case, he may be permitted to be examined as a witness. The defendants filed a rejoinder, challenging the allegation of the plaintiff. The learned Munsif, on an interpretation of the provisions of Order XVIII Rule 3-A of the Code, came to the conclusion that unless a petition by the plaintiff was filed for permission to be examined as a witness later than his other witnesses, he could not be permitted to be examined as a witness. The Munsif did not go into the question of truth or otherwise of the plaintiff's plea that he was ill.
3. Mr. Raghubansh Singh, learned Counsel appearing on behalf of the plaintiff-petitioner, has urged that the learned Munsif has taken too narrow a view of Rule 3-A of Order XVIII of the Code, which is a new provision and that the said provision does not prescribe any such limitation as placed on it by the learned Munsif. Learned Counsel has relied on a Bench decision of this Court in the case of Rameshwar Sharma v. Sarju Prasad (1979 BBCJ 637), in support of his contention.
4. Rule 3-A of Order XVIII of Code, which is a new provision, reads as follows:--
"Where a party himself wishes to appears 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."
A reference to the above provision 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. It has also been so held by a Bench of this Court in the case of Rameshwar Sharma (1979 BBCJ 637) (supra), on which Mr. Singh has placed reliance. Relevant passage from the said decision may usefully be quoted:--
"So far the Court's powers are concerned, there are no words to indicate that an application for such permission has to be filed before the party examines his first witness, In absence of any restriction in this regard it should be held that ordinarily an application for such permission can be made either at the initial stage or when its occasion arises. In a case where the party has already decided to examine himself as a witness but for adequate reasons he is not in a position to examine himself at the initial stage, it is desirable that he files such application in the very beginning. There may be, however, cases where necessity for examination of a party may itself arise at a belated stage and he may be advised by the counsel to do so. In such a case, he could not have filed an application in the beginning. Does it mean that in these cases the court is left helpless in not coming to the aid of the party although convinced that he had a good case for not examining himself as his first witness. There may be other situations in which a party may be justified in asking for necessary permission later on."
I am in respectful agreement with the observations made by the Bench in the aforesaid case and I would further add that Clause (4) has been added to Rule 2 of this Order, which is significant in this regard, and may usefully be reproduced:--
"(4) 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."
If a narrow interpretation is put on Rule 3-A, then this new provision [Rule 2 (4)], which has been brought in along with Rule 3-A, in my view, will be rendered nugatory, so far as the party himself is concerned. On a harmonious construction of these two provisions, the view taken by the learned Munsif is erroneous and he has acted illegally and with material irregularity in rejecting the prayer of the plaintiff to examine himself as a witness.
5. This application is accordingly allowed and the impugned order of the learned Munsif is set aside. As the learned Munsif has not disbelieved the plaintiff's plea of being ill at the relevant point of time, he should allow the plaintiff's prayer to examine himself as a witness, with liberty to the defendants to recall such of the witnesses as they may like to examine further in view of any fresh material that may be brought by the plaintiff himself in his evidence. In the circumstances of the case, there will be no order as to costs.