SHAMANNA Vs. CHINNAMMA

JUDGEMENT

(1.) This CRP is preferred against the order dated 16th June 1981 passed by the learned Prl. Civil Judge, Bangalore Dist., in O.S. No. 124 of 1978 allowing the application (LA. No. 7) filed by the first defendant under Order 18, Rule 3A CPC (hereinafter referred to as 'the Code') for preventing the plaintiff from entering the witness box to give evidence.

(2.) The brief facts of the case are as follows: The plaintiff has examined the witnesses on his behalf. Before examining the witnesses on his behalf, he did not seek permission of the Court for tendering himself as a witness in the case after the examination of the other witnesses on his behalf. Thereafter, without seeking permission, he has tried to tender himself as a witness and it is at this stage the 1st defendant has filed I.A. No. 7 for preventing the plaintiff from giving evidence on the ground that he should have got himself examined in the beginning before the examination of the other witnesses on his behalf. The learrned trial Judge relying upon Rule 3A of Order 18 of the Code, has allowed the application and has held that as the plaintiff has not appeared as a witness before any other witness is examined on his behalf, he has no right to give evidence and his right to give evidence is lost. Consequently, the learned Judge has allowed! the application and has prevented the plaintiff from examining himself as a witness, without considering the question as to whether the plaintiff can be permitted to give evidence even after he has examined the other witnesses on his behalf.

(3.) On behalf of the petitioner, i,t is contended that no such application can be maintained by the first defendant in the suit as it is for the Court to permit or not to permit the plaintiff to appear as his own witness even after the examination of the other witnesses is done on his behalf. It is also further contended that under Rule 3A of Order 18 of the Code, even in a case where the party does not appear as a witness on his behalf and also does not obtain permission from the Court before the examination of the other witnesses on his behalf, it is open for the Court to permit him to appear as a witness on his behalf even after the examination of the other witnesses on his behalf; similarly it is still open for the party to seek permission of the Court to appear as witness on his behalf and in such a situation alko, it is always open for the Court to permit the the party to appear as a witness on his behalf at a later stage and as such, the learned Civil Judge is not correct in holding that the plaintiff is not entitled to give evidence. It is also further contended that the provisions contained in Rule 3A of Order 18 of the Code, being provisions pertaining to procedure, the same should be interpreted in such a way so as to advance the ends of justice and as such, no narrow interpretation should be placed so as to defeat the right of a party to give evidence or to come in the way of the Court to do substantial justice to the parties. This provision, though it has been newly added by Sec. 69 (ii) of Act No. 104 of 1976, has already been interpreted by the High Courts of Punjab and Haryana and Orissa, in Kwality Restaurant, Amritsar v. Satinder Khanna (1) and in Maguni Dei v. Gouranga Sahu (2),