AMRITSAR IMPROVEMENT TRUST Vs. ISHRI DEVI

JUDGEMENT

(1.) WHETHER the recently inserted Rule 3 -A of Order 18 Code of Civil Procedure mandatorily requires that permission of the of the Court for a party to appear as his own witness subsequent to his other witnesses should be obtained before the commencement of his evidence and not later, is the rather meaningful question which falls afresh for determination in this reference to the Full Bench.

(2.) IT is unnecessary to advert to the facts in any great detail as the question aforesaid is primarily legal. It suffices to mention that the Plaintiff, Respondent herein, sought the permission of the trial Court to examine herself as her own witness after the testimony of two of her witnesses had been earlier recorded. Objection was primarily raised on the basis of Jagannath Nayak v. Laxminarayan Thakur and Ors. : A.I.R. 1978 Ori 1, that the permission having not been secured at the very inception of the Plaintiff's evidence, the Court had no jurisdiction to grant the same later. The trial Court for the reasons recorded in order under revision, however, allowed the Plaintiff's prayer to step into the witness -box later. The order aforesaid is under challenge herein and it is equally necessary to advert briefly to the background which has necessitated the reference.

(3.) AT the very outset it, may be noticed that some conflict of precedent which existed earlier now stands resolved and there is now no discordant note. As is evident from above, the very cornerstone of the argument in favour of the Petitioner was rested on Jagannath Nayak's case (supra): That view has, however, been recently overruled by an exhaustive judgment of a Division Bench of that very Court reported in Maguni Dei v. Gaurang Sabu and Ors., 1978 CWR 107. Therein it has been held categorically that Order 18. Rule 3 -A is directory in nature and in proper cases the Court has got the power to accord permission to a party to appear at a later stage even though he may not have done so at the very commencement of his evidence. A similar view has been expressed by the Allahabad High Court in the judgment reported as Mohd. Aqil v. Alimulla, 1978 (2) R.L.R. 554. Even in this Court a learned Single Judge in Niranjan Lal v. Punjab State Electricity Board Patiala and Ors., 1978 P.L.R. 412, has opined to the same effect and as already noticed, the Division Bench in Kwality Restaurant, Amritsar's case (supra) has expressed a similar view learned Counsel for the Petitioner had conceded his inability to cite any precedent to the contrary and it is, therefore, plain that the weight of authority is uniformly against the stand taken by the Petitioner.