MALOD TRANSPORT CO Vs. MEMON JIKARBHAI DANDBHAI
LAWS(GJH)-1979-11-8
HIGH COURT OF GUJARAT
Decided on November 14,1979

MALOD TRANSPORT COMPANY Appellant
VERSUS
MEMON JIKARBHAI DAUDBHAI Respondents

JUDGEMENT

A.M.AHMADI - (1.) This Revision Application by the original defendant of Suit No. 17 of 1977 pending in the Court of the learned Civil Judge (Junior Division) Surendranagar raises an interesting question regarding the interpretation of Rule 3-A of Order 18 of the Code of Civil Procedure 1908 which was introduced on the statute book by Code of Civil Procedure (Amendment) Act 1976 (No. 104 of 1976) and which reads as under: "3 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". The facts in the context of which the aforesaid newly introduced Rule 3 of Order 18 of the Code is required to be construed are as under.
(2.) The opponent plaintiff filed a Suit No. 17 of 1977 for possession of the premises in the occupation of the petitioner defendant inter asia on the ground of arrears of rent after serving him with a notice to quit. On the service of the summons of the said suit the deFendant entered an appearance and filed a written statement contesting the suit. The allegation that he was a tenant in arrears and was not ready and willing to pay the standard rent in respect of the demised premises was countered by alleging that on receipt of the notice he met the plaintiff personally and offered the rent to him but the plaintiff directed him to his father who was in management of the property. Thereupon he met the plaintiffs father and offered the rent to him but he was told not to worry about the notice. The rent though offered was not accepted from him. The petitioner defendant therefore contended in his written statement to the suit that he was throughout ready and willing to pay the rent in respect of the demised premises and was therefore not a tenant in arrears liable to be evicted from the premises. When the said suit came up for hearing before the learned trial Judge on 9th August 1979 the plaintiffs father entered the witness box and gave evidence on behalf of the plaintiff. He was cross examined by the learned advocate appearing on behalf of the defendant. Thereafter the matter was adjourned to 24th August 1979 on which date the plaintiff gave an application Exhibit 48 seeking leave of the Court to examine himself as a witness in the said suit under Rule 3 A of Order 18 of the Code of Civil Procedure. This request was resisted by the petitioner defendant on the ground that the defence was clearly stated in the written statement and that it would prejudice his case if the plaintiff is now allowed to enter the witness box to give evidence. The learned trial Judge considered these objections and relying on a decision of the Orissa High Court in Parmananda v. Labanya Bewa A.I.R. 1979 Orissa 132 granted the plaintiffs request on payment of Rs. 30 by way of costs. It is against this order of 7th September 1979 that the petitioner defendant has preferred the present Revision Application.
(3.) Mr. Joshi the learned advocate for the petitioner defendant sub mits that the provision of Rule 3-A of Order 18 of the Code of Civil Procedure is mandatory and the Court has no jurisdiction to permit examination of the plaintiff at a subsequent stage if permission of the Court is not obtained at the commencement of the evidence on behalf of the plaintiff. In support of this contention he places strong reliance on the decision of S. K. Ray J; in Jagannath v. Laxminarayna A.I.R. 1978 Orissa 1. The view taken by the learned Single Judge in the said case fully supports the contention of Mr. Joshi. Mr. Joshi therefore strenuously urged before me that the provision of Rule 3-A being mandatory if a party fails to strictly comply therewith he forfeits his right to examine himself as a witness at a subsequent stage and the Court also loses its jurisdiction to grant the permission which it could have granted had it been sought before the commencement of evidence on his behalf at the trial.;


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