M.R.SHARMA, J. - (1.) THE petitioner filed a civil suit for the recovery of Rs. 3,000/ - from the defendants -respondents on the ground that this penalty had been imposed on him contrary to the provisions of law. The suit was filed on April 3, 1976. Issues were framed on September 15, 1976. The petitioner filed a list of witnesses on November 26, 1976. In that list, he had stated that he would himself appear as his own witness. However, on account of some reason the petitioner did not enter into the witness box first of all as is laid down in order 18, Rule 3 -A of the Civil Procedure Code. When a prayer was made that he should be allowed to appear as a witness at a later stage, the learned trial Court turned down the prayer on account of the aforementioned provision. In this behalf Mr. Sarin, learned counsel for the petitioner, has submitted that if the petitioner is not allowed to appear as a witness in support of this case manifest injustice would come into being. He further argues that Order 18, Rule 3 -A of the Civil Procedure Code is not a mandatory provision inasmuch as the phraseology employed in the rule was that the Court may, for the reasons to be recorded permit a party to appear as his own witness even at a subsequent stage. In support of his contention, the learned counsel has placed reliance on a judgment rendered by me in Darshan Kumar and another v. Raghunandan Sharma, (1978)80 P.L.R. 368. In that case, I had held that the amendments introduced in the Civil Procedure Code should not be given retrospective effect. This judgment can, however, be distinguished on the ground that the stage when a party should be allowed to appear as his own witness is a matter relating to procedure and only substantive rights are in some cases governed by the repealed statute. But I see no reason why change in the letter of law after the institution of the suit be not taken into consideration as a mitigating circumstance in favour of the petitioner.
(2.) MR . Ashok Bhan, on the other hand, has relied upon a Single Bench judgment in Jagannath Nayak v. Luxmi Narain Thakur, A.I.R. 1978 Orissa 1. S.K. Ray, J., who decided that case observed as under : "When a party wishes to examine himself as a witness, he must appear before any other witness on his behalf has been examined. The word used in this provision is "shall" which ordinarily is mandatory, unless there is anything in the subject -matter or context to indicate that it shall be construed as "may". The second part of this provision enables the court to permit a party to appear as his own witness at a later stage and that such permission may be granted for reasons to be recorded. The question, therefore, which arises is whether such prmision must be obtained from the court before examining any witness on behalf of party or after violating the provision, move the later on for exemption from the legal requirement of this rule. The later alternative is inconsistent with the legislative intent indicated above. On the contrary, the expression "...........he shall so appear........unless the court permits him to appear..........." indicates that a party, to relieve himself from the mandatory obligation to appear as the first witness on his side, can be relieved only when permission is accorded to him to appear at a later stage. It appears to me that this permission of the court must be sought for at the time when the party is to commence leading his evidence. Unless this interpretation is given, the other party will be put to great harassment. He would not know, at the time when his opponent is commencing to lead his evidence, whether that opponent will at all offer himself to be examined as a witness." With utmost respect to the learned Judge, I might observe that he has taken a rather narrow view of the provisions of a procedural statute which is meant to subserve the interest of justice. It is in the public interest that litigants should be allowed to have full say when they represent their respective cases before a Court of law. Merely because a party does not seek the permission of the Court to appear as a witness at an earlier stage does not and should not debar a Court from considering his request favourably if he makes out a proper case for being granted the permission to appear as his own witness at a later stage. While doing so the Court should pay due regard to the nature of the controversy, the conduct of the parties, possible harm to his opponent if permission is granted to a party and last of all whether the aggrieved party can be adequately compensated with costs or not. In the instant case the petitioner challenged the imposition of penalty by an agency of the State Government and the grounds on which such a challenge can succeed are well known. The respondents have competent legal advisers at its disposal and there is no indication that it would be taken by surprise if the petitioner is allowed to appear as his own witness. Besides, the respondents could have been adequately compensated by award of some nominal costs. In Jagannath Nayak's case (supra) permission was not granted to the defendant to appear as his own witness because of the peculiar conduct displayed and dilatory tactic adopted by him.
(3.) IN the circumstances, I allow this petition, set aside the order under revision and direct that the petitioner be allowed to appear as his own witness. Of course, it shall be open to the learned trial Court to appreciate the evidence of the petitioner in the background of the fact that the petitioner did not choose to appear as his own witness before he examined other witnesses in support of his case. No costs. The parties through their learned counsel are directed to appear before the learned trial Court on May 29, 1978. Revision allowed.;