GOVERDHAN RAM VAISHNU BHAGAT Vs. DEV RAJ

JUDGEMENT

(1.) IN a suit for ejectment filed by the respondent against the present petitioner on the close of plaintiffs/respondents evidence on 13.12.1986, the learned trial court ejected the defendant to lead his evidence on January 10, 1987. On January 10, 1987, the court directed that the defendant be produced for recording of his statement on January 20, 1987 and his witnesses be summoned. On January 20, 1987. The petitioner filed an application under order 18 Rule 3 -A of the Code of Civil procedure seeking permission to get his own statement recorded after other witnesses on his behalf are examined. The petitioner also filed list of 54 witnesses to be summoned through the court and also deposited the diet expenses for the summoning of the witnesses Learned trial court after getting the objections of the respondent on the above noted application and hearing the respective parties, passed the order on March 17, 1987 rejecting the application of the petitioner to defer his statement till the statements of all his witnesses are recorded. The petitioner being aggrieved against the said order has filed this revision.

(2.) THE only question agitated in the present revision pertains to the interpretation of order 18 Rule 3 -A of the Code of Civil Procedure (herein after called the Rule) and the power of the court in the facts and circumstances of the present case to defer the statement of the petitioner/defendant.

(3.) LEARNED counsel for the petitioner projecting the provisions of the Rule submitted that the legislature in its wisdom though used the word shall in the rule, but the same has the effect of may and thus it is a directory provision and not mandatory as held by the learned trial court. In support of his contention learned counsel relied on some authorities of the different High Courts, on which according, to him there is no authoritative pronouncement by this Court. Learned counsel relied on a Division Bench authority of the Patna High Court reported in A.I.R. 1986 Patna 315 (Pravesh Kumari and others, Appellants Vs. Risih Prasad and others. Respondents), other authorities relied on are: A.I.R. 1981 Calcutta 295 (Pholathan Mondal and others. Petitioners Vs Kalipada Mondal, opposite party), A.I.R. 1979 Punjab and Haryana 72 (M/s Kwality Restaurant, Amritsar, Petitioner Vs. Satinder Khanna, Amritsar, Respondent), A.I.R. 1978 Orissa (Jaganath Nayak, Petitioner Vs. Laxminarayan Thakur and others, Opposite Parties) and A.I.R. 1978 Orissa 228 (Maguni Dei, Petitioner Vs. Goveranga Sahu and others. Opposite Parties). Code of Procedure (Amendment Act, 1983 in the State of Jammu and Kashmir received the assent of the Governor on April 13, 1983 also notified in the J&K Government Gazette dated 15, 1983. There is no dispute about the fact, since the case is instituted on November 16, 1984, the provisions of the amended Code will govern the procedure for the trial of the case. Learned counsel for the respondent has no quarrel about the directory nature of the provisions of the rule and, therefore, on the authorities cited, he does not dispute that a discretion is given to the court to defer the statement of a party for the reasons to be recorded as provided. He, however, submits that in the facts and circumstances of the present case, the discretion exercised by the learned trial court in rejecting the prayer of the petitioner to defer his statement is judicially exercised on the facts in the present case and, therefore, the order impugned cannot be said to be either illegal or without jurisdiction. It is also submitted by learned counsel for the respondent that the order impugned cannot be deemed to be a case decided cannot be interfered under the provisions of Section 115 of the Code of Civil Procedure. Reliance is placed by him to support his contention on A.I.R. 1986 Delhi 286 (Rajasthan Golden Transport Co (Pvt.) Ltd. Petitioner Vs. Avon Footwear Industries Pvt. Ltd, Respondent).