Decided on February 27,1978

MAGUNI DEI Appellant


P.K.MOHANTI, J. - (1.) This civil revision raises a point of considerable importance concerning the litigants and the legal practitioners frequently in trials before the subordinate courts. The question whether a party who has not examined himself as the first witness in support of his cause and has not obtained permission of the court to appear as such witness at a later stage as required under O. 18, R. 3-A, C.P.C., as amended by the Civil P. C. (Amendment) Act, 1976, can be examined at a later stage of the trial is the sole point for determination.
(2.) The amended rule runs thus: "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."
(3.) The brief facts in the present matter are these: Opposite party No. 1 filed Title Suit No. 103 of 1974 against the petitioner and some others for declaration of title and recovery of possession in respect of the disputed property. On a petition filed by him, two of his witnesses were permitted to be examined on 11-3-77 obviously under the provisions of O. 18, R. 16, Civil P. C. The regular trial of the suit commenced on 15-1-77. On that day he filed a petition under O. 18, R. 3-A, C.P.C, seeking permission of the court to examine himself as a witness it a later stage on the ground that his witnesses who were in attendance on that day did not like to be detained. No order was passed on this petition, but two other witnesses for the plaintiff were examined. On 16-4-77 two more witnesses were examined on behalf of the plaintiff. On 19-4-77 the plaintiffs petition dated 15-4-77 was taken up for consideration and it was opposed by the petitioner on the ground that the plaintiff having failed to comply with the provisions of O. 18, R. 3-A, C.P.C. he had forfeited the right to examine himself and the court had no longer jurisdiction to allow him to be examined at a later stage. The trial court overruled the objection and allowed the plaintiff to examine himself even though he had not obtained leave of the court earlier. Then the plaintiff was examined on 20-4-77 and defendant No. 1 was allowed to cross-examine him without prejudice to his right to challenge the court's order dated 19-4-77 by way of a revision application.;

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