SAPHI MOHAMMAD Vs. RAM JIYAWAN

JUDGEMENT

(1.) INVOKING the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code') the plaintiff petitioner has called in question the legal validity of the order dated 13-3-2000 passed by the learned 4th Civil Judge, Class-II, Rewa in C. S. No. 264-A/1995.

(2.) THE facts as have been unfolded are that the plaintiff initiated civil litigation being C. S. No. 264-A/95 for declaration and possession of the suit land. After commencement of the hearing of the suit it was posted on 15-9-99 for the evidence of defendant No. 2. On that day the defendant No. 2 did not examine himself but examined one Tahir Ali without taking leave of the Court. The learned Trial Judge examined Tahir Ali and adjourned the matter for further hearing to another date. Thereafter the plaintiff filed an application that as Tahir Ali had been examined before examination of defendant No. 2 without leave of the Court the evidence of defendant No. 2 should be foreclosed. The learned Trial Judge by the impugned order dealt with the said application and came to hold that on 15-9-99 the Court had granted permission to the defendant No. 2 and the said fact was not objected to by the plaintiff. Being of this view the learned Trial Judge rejected the application preferred by the plaintiff.

(3.) ASSAILING the impugned order it is contended by Mr. Ajay Sharma, learned counsel for the petitioner that the order dated 15-9-99 does not show that any permission was granted by the Court below to examine Tahir Ali before examination of defendant No. 2 and hence, the reasoning ascribed by the Court below in his order dated 13-3-2000 is against the material on record and, therefore, the impugned order is vulnerable. It is also urged by him that the provision enshrined under Order 18 Rule 3-A is mandatory and as there has been violation thereof the evidence of the defendant No. 2 has to be foreclosed. Combating the aforesaid submissions it is canvassed by Mr. A. K. Pandey, learned counsel for the non-applicants that the provision engrafted under Order 18 Rule 3-A is not mandatory but directory and the Court has the jurisdiction to permit the party to examine himself as a witness at a later stage. He has however, accepted the fact that by order dated 15-9-99 the Court had not given any written permission. The further submission of the learned counsel is that a party can take permission later on and examine himself and such grant of permission is dependent on the discretion of the Court.