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2002 DIGILAW 399 (JK)

Abida Begum v. Zaira Begum

2002-12-19

S.K.GUPTA

body2002
1. Heard Mr. O.P. Thakur, learned counsel for the petitioners as well as Mr. A.G. Sheikh, learned counsel for the respondents in extenso. 2. Through the currency of this revision, the petitioners seek correctness of the order formulated by the Sub-Judge, Ramban dated: 23-08-2001, whereby the petitioners application for examining her as witness, has been rejected. 3. Facts leading to the present revision, may be noted. In a suit initiated by the petitioners-plaintiffs dated: 27-08-1994, the issues were settled on 25-03-1996, after recording statements of the parties in terms of Order 10 Rule 2 Code of Civil Procedure, Svt. 1977 (1920 A.D.). The parties led evidence in support of their rival claims in the case. 4. An application, however, came to be preferred by the petitioners-plaintiffs that preliminary statement of the attorney of the plaintiffs recorded prior to the framing of the issue, was not accordance with section 138 of the Evidence Act and sought the indulgence of the court for his examination as her own witness in pleading that due to over-sight and inadvertence, the petitioners were under impression that his evidence has been recorded after framing of the issues. The trial court, however, found that this application did not merit acceptance before the trial court and stood rejected. It was further contended that the trail court has not appreciated her contention in right perspective for grant of permission to be examined as witness under Order 18 Rule 3-A Code of Civil Procedure, Svt. 1977 (1920 A.D.). It is further submitted by Mr. O.P. Thakur, petitioner Advocate that Order 18 Rule 3-A Code of Civil Procedure, Svt. 1977 (1920 A.D.) is of directory nature and not mandatory. The court has got power in a proper case to examine a party at a latter stage even though a party has failed to obtain its previous permission. 5. Mr. A.G. Sheikh, learned counsel for respondents however, submitted that though admittedly the court has discretion to grant permission to the party to appear as witness at later stage, provided sufficient and cogent reasons are assigned. The petitioners, according to him, have not shown any good reason for not appearing as witnesses. 5. Mr. A.G. Sheikh, learned counsel for respondents however, submitted that though admittedly the court has discretion to grant permission to the party to appear as witness at later stage, provided sufficient and cogent reasons are assigned. The petitioners, according to him, have not shown any good reason for not appearing as witnesses. In case she wishes to examine herself before any other witness on her behalf has been examined and in such event, no such permission can be granted to the plaintiffs to appear as her own witness at this belated stage of final arguments. 6. Order 18 Rule 3 -A in essence lays down a rule of procedure which is to be liberally construed. When broadly construed, the intention of legislature appears to be that the normal and ordinary rule prescribed now is that the party appearing as his own witness should do so before any or his witness. However, this rule is not an inflexible and may be expressly deviated from with permission of court based on adequate reasons. No specific stage is prescribed or fixed by the statute. The provisions of Order 18 Rule3-A are directory in nature and the court is not denuded of its jurisdiction to grant permission when an application there for is made for good reasons at a later stage.- 7. The contention of rule should not be given a narrow interpretation. In proper cases, the party desiring to appear as a witness and applying to be examined after other witnesses are produced must be accorded the permission. In other words, the provision has to be construed in a manner which advances the cause of justice and should not be construed in a manner to frustrate it. A directory provision is generally affirmative in its terms. 8. Having regard to the languages of the rule and particularly keeping in view the facts that the Order 18 Rule 3-A does not contain any penal provision to make it mandatory it is open to the trial court to grant permission to a party even after the statement of his witnesses have been recorded. 9. In the instant case, the counsel for the petitioners was under impression that statement of petitioner-1 has been recorded after framing of the issue, which statement in fact, came to be made by the petitioner prior to the framing of the issue under Order 10 Code of Civil Procedure, Svt. 9. In the instant case, the counsel for the petitioners was under impression that statement of petitioner-1 has been recorded after framing of the issue, which statement in fact, came to be made by the petitioner prior to the framing of the issue under Order 10 Code of Civil Procedure, Svt. 1977 (1920 A.D.). He, however, learnt about it only when the case was fixed for argument that the petitioner has not been examined as witness in the case. Petitioner manifestly seems to be acted in good faith and in such circumstances, it is just, proper and fair to permit here to examine herself at a later stage. The trial court does not seem to have construed the provision of Order 18 Rule 3-A Code of Civil Procedure, Svt. 1977 (1920 A.D.) in its proper perspective and in imperative mandate and landed in award in refusing the grant of permission to examine herself as her own witness even at a later stage. Consequently, I allow the revision and set-aside the order impugned. The petitioner-plaintiff is permitted to appear and examine herself as witness in the case. Parties through their counsel are directed to cause appearance before the trial court on 14th Feb. 2002 and the petitioner-plaintiff shall appear and examine herself as witness in the case on the said date. No order as to costs.