RAM MAHARAJ Vs. RAJ KISHORE BHAGAT

JUDGEMENT

(1.) This application has been filed by the Defendant of Title Suit No. 166 of 1975 challenging the order dated 3-4-1978 passed by the learned lower court, rejecting the objection of the opposite party wherein he objected that the plaintiff opposite party is not entitled to examine himself as a witness at that stage of the hearing of the suit. The suit was taken up for hearing on 28-3-3 978 and on that date P.Ws. 1 and 2 were examined. Thereafter the suit was adjourned to 29-3-1978 when P. Ws. 3, 4 and 5 were examined on 30-3-1978, P.Ws. 6, 7 and 8 were examined on 31-3-1978, P.Ws. 9 and 10 were examined on 1-4-1978, P.Ws 11 and 12 were examined. The suit was adjourned to 3-4-1978 for further hearing. On 3-4-1978 when the opposite party wanted to examine himself as a witness, the petitioner filed an application stating therein that the plaintiff opposite party was not entitled to examine himself at that stage in view of Order XVIII, Rule 3-A of the Code of Civil Procedure (hereinafter referred to as "the Code").

(2.) It is necessary to look into the Legislative background of Rule 3-A of Order XVIII of the Code. In its Fourteenth Report, the Law Commission in respect of Rule 3 of Order XVIII of the Code recommended as follows:

(3.) The word used in this provision is "shall" which ordinarily is Mandatory. That it is mandatory will also appear from the Fifty-Fourth Report of the Law Commission which was accepted by the Legislature. The rule enable the court to permit a party to examine himself at a later stage and such permission may be granted by the court for the reasons to be recorded by it. On the plain reading of the rule it provides that such permission must be obtained from the court before any witness on behalf of a party is examined as a witness. If any other meaning is put to the interpretation of this rule it will be inconsistent with the legislative intent stated above. The plain meaning of rule, therefore, is that at the commencement of hearing of the suit, a party must examine himself as witness, if he intends to examine himself in that case or he must file an application for permission to examine himself as a witness at a later stage and if the court so permits the party to examine himself at a later stage, it shall record reasons for the same. It is true that it is a procedural law, but, the object of insertion of a procedural law being to suppress a mischief must also be strictly construed.