PRAVINCHANDRA RAVJIBHAI AMIN Vs. BABUBHAI CHHOTABHAI PATEL

JUDGEMENT

(1.) The short question which arises for my consideration in this revision application is whether the learned trial Judge was right in holding that the provisions of Order 18 Rule 3-A of the Code of Civil Procedure were mandatory and refusing to permit the petitioner who is original defendant to examine himself as a witness.

(2.) The respondent who is original plaintiff had filed a suit being Rent Suit No. 122 of 1976 in the Court of Small Causes at Vadodara for recovery of arrears of rent and other reliefs. The petitioner who is original defendant resisted the suit and amongst other things contended that the rent demanded from him by the respondent is not the standard rent. Petitioner prayed for determination of the standard rent of the suit premises. It appears that the suit premises was valued by the Engineer of the Public Works Department. Petitioner examined the Engineer as his witness before examining himself when he led his evidence. Petitioner thereafter give application to the trial Court to examine himself as a witness. The trial Court however relying on a decision of the Orissa High Court in Jagannath v. Laxminarayan A.I.R. 1978 Orissa page 1 had held that the provisions of Order 18 Rule 3-A were mandatory and since the petitioner had not obtained the permission of the Court before examining the Engineer he cannot be permitted to examine himself as a witness. Being aggrieved by the order passed by the learned Judge petitioner has preferred this revision application.

(3.) Now it appears that the decision of the Orissa High Court on which the learned trial Judge has relied was overruled by a Division Bench of the Orissa High Court in Magunidei v. Gauranga Sahu A.I.R. 1978 Orissa 228. The judgment in Jagannath v. Laxminarayan was delivered by a Single Judge while as pointed out above the judgment in Magunidei was delivered by a Division Bench. The Division Bench held that Rule 3-A of Order 18 is of directory nature and in proper cases the Court has power to examine a party at a later stage even though he has not obtained Courts previous permission as provided in the rule. With respect I agree with the view taken by the Division Bench of the Orissa High Court. Rule 3-A of Order 18 of the Code of Civil Procedure is of directory nature. In proper cases the Court has power to examine a party at a later stage even Though he has not obtained Courts previous permission as provided in the rule. As held by the Division Bench of the Orissa High Court if a party has acted in good faith and it is just and fair to permit him to examine himself at later stage the Court is not absolutely helpless in the matter. It appears that in the instant case the petitioner acted in good faith and examined Engineer as his witness before examining himself. In my opinion having regard to the facts and circumstances of the case it is just and fair to permit him to examine himself. The learned trial Judge therefore ought to have granted the petitioners application.