Decided on November 11,1968

Sardar Manmohansingh Nagpal Appellant
Manakchand Kothari Respondents


C.B.BHARGAVA, J. - (1.)THE point for determination in this revision by the defendant is whether a party who has not examined himself as a first witness and has not obtained permission of the court to appear as his own witness at a later stage as required by Order 18, Rule 2(4) as amended by Rajasthan High Court, can be examined as a witness or not.
(2.)SUB -rule (4) made by the Rajasthan High Court, is as follows: Where a party wishes to appear as a witness he shall so appear before any other witness on his behalf has been examined; provided that the Court may on an application made in this behalf and for reasons to be recorded, permit him to appear as his own witness at a later stage.
Plaintiffs -non -petitioners filed a suit for ejectment, rent and damages against the petitioner on 3rd January, 1962 in the court of the Additional Munsif, No. 2 Jaipur City. After the written statement had been filed, issues were framed on 26th July, 1962, and the case was adjourned for plaintiffs' evidence to 6th November, 1962. The plaintiffs were directed to file a list of witnesses which they did within the prescribed period and also included their names there in. On 6th November, 1962, plaintiffs and their witnesses were present, but as the court was pre -occupied in hearing arguments in another case, the case was ordered to be adjourned to 7th January, 1963. But before the order was signed, statement of Suraj Narain witness an employee of the Municipal Council, Jaipur, was recorded. The order sheet dated 6th November, 1962 is as under: There after though the case was adjourned several times, no evidence was recorded. When the case came up again before the court on 22nd July, 1964, and the plaintiffs wanted to examine themselves as their own witnesses, objection was raised on behalf of the defendant relying on the provisions of Sub -rule 4 to Rule 2 of Order 18, that the plaintiffs having failed to comply with the said provision, have lost their right to examine themselves. On behalf of the plaintiffs an affidavit was filed that it was the with consent of the defendant's counsel that Surajnarain's statement was recorded on 6th November, 1962, and that it was agreed that the plaintiffs would be examined on the next date and that the court had also given permission for it. This fact was controverter by the defendant's counsel in bis affidavit and the learned Munsif found that the above contention of the plaintiffs was wholly incorrect. He therefore, refused to examine the plaintiffs though the other witnesses produced by them were examined. There after the defendant's evidence was recorded and the court after hearing arguments, dismissed the plaintiffs' suit.

(3.)IT may be noted that the suit for ejectment was based on the personal necessity of the plaintiffs.

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