KHADI KISAN Vs. THUBRA KISEN

JUDGEMENT

(1.) One of the defendants in Title Suit No. 54 of 1977 on the file of the Subordinate Judge, Sundargarh has filed this civil revision petition challenging the order dated 10-8-82 permitting the plaintiff opposite party No. 1 to be examined as a witness after close of the argument in the suit. The opposite party No. 1 filed the suit for declaration that the sale deed dated 15-5-70 by opp. party No. 2 in favour of the petitioner is not binding on him. The case was being looked after by Ganda Kisan, a relation of the plaintiff, on his behalf, on the basis of a special power of attorney executed by the latter in his favour. The said Ganda Kisan was examined as P.W. 1 in the suit. Some other witnesses were also examined in support of the plaintiffs case. The plaintiff did not examine himself as a witness. Some witnesses were examined from the defendants' side including the petitioner (defendant No. 1). In course of argument, the power of attorney executed by the plaintiff in favour of Ganda Kisan was challenged by defendant No. 1. At this stage a petition under O.18, R.17-A, C.P.C. read with S.151, C.P.C. was filed for permission to examine the plaintiff as a witness for just decision of the case and to meet the ends of justice. It was stated in the application that the plaintiff, an old and partially blind person had not examined himself as a witness under the impression that the examination of power of attorney holder as a witness (P.W. 1) would suffice the purpose. Since the dispute was being raised regarding the genuineness of the power of attorney and he was the best person to speak about the execution of the said document, the plaintiff subsequently decided to examine himself as witness. In his objection to this petition defendant No. 1 stated, inter alia, that the plaintiff, if he so desired, should have examined himself at the beginning of his case or should have sought permission of the court to examine himself at a later stage. Having not so done, he was not entitled to examine himself at a belated stage. This would enable him to fill up the lacuna in his case. The court below on consideration of the case of both the parties came to hold that the plaintiff's application did not satisfy the ingredients of O.18, R.17-A, C.P.C. However, the court felt that examination of the plaintiff was necessary for ends of justice and for proper adjudication of the controversy and accordingly granted permission to the plaintiff to examine himself as a witness. The revision petition is directed against this order. In spite of service of notice there is no appearance on behalf of the opp. parties. Shri B.L.N. Swamy, learned counsel for the petitioner referring to different provisions of Order 18 C.P.C. contended that the trial court erred in granting permission to the plaintiff to examine himself as a witness at the belated stage, especially after coming to the conclusion that no case was made out under the provisions of Order 18, Rule 17-A, C.P.C. It was his contention that the scheme of the relevant provisions of Order 18 shows that it is intended that whenever a party wishes to examine himself as a witness in support of his case, he should be examined first before the examination of any other witness. If the party does not want to examine himself at the opening of his case, he has to seek permission of the court to examine himself at a later stage. But that can be only before closure of his case. In the present case, since the evidence from the side of the defendant No. 1 had been closed by the date of filing of the petition under Order 18, Rule 17-A, C.P.C. and the ingredients of the said provisions could not be established by the plaintiff there was no scope for the court to grant permission to the plaintiff to examine himself as a witness.

(2.) Before considering the contention of the learned counsel for the petitioner that inherent jurisdiction of the court was not available to be invoked in the case, it is necessary to see if the court below was right in holding that the requirements of O.18, R.17-A, C.P.C. were not satisfied in the case. The main reason for the finding of the court below in this regard was that the plaintiff neither examined himself at the appropriate stage in the proceeding nor did he seek leave of the court to examine himself at a subsequent stage, even after objection was raised to the power of attorney executed by him in favour of Ganda Kisan (P.W. 1). No doubt, O.18, R.3-A, C.P.C. provides that 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. But this rule is directory and not mandatory. A Division Bench of this Court in the case of Maguni Dei v. Gouranga Sahu, AIR 1978 Ori 228 held that Rule 3A of Order 18 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. If a party has acted in good faith and it is just and fair to permit him to examine himself at a later stage, the court is not absolutely helpless in the matter. This position is reinforced by the provisions under R.17-A. The said rule vests discretion in the court to permit a party to produce any evidence at a later stage if he satisfies the court that notwithstanding the exercise of due diligence by him, any evidence was not within his knowledge or could not have been produced by him at the time when the evidence was taken. From the facts of the present case it is clear that the plaintiff, an old, ailing and blind person, had executed a power of attorney in favour of Ganda Kisan for taking necessary steps in the suit. Ganda Kisan was examined as P.W. 1 in the suit. In these circumstances the plaintiff might have been under the bona fide impression that his examination in the case was not necessary. It was not the case of the defendants that examination of the plaintiff as a witness was vitiated by want of good faith or that the plaintiff deliberately and purposefully withheld himself from the witness box. Therefore, the court below was not right in holding that the plaintiff failed to make out a case under O.18, R.17-A, C.P.C. for permission to examine himself at a later stage in the suit, particularly when the court felt that his examination was necessary for proper adjudication of the dispute, In view of this finding, it is not necessary to go into the question whether the trial court was justified in exercising inherent jurisdiction to allow examination of the plaintiff.

(3.) In the result, the revision petition is dismissed, but in the circumstances of the case without any order for costs. Revision dismissed.