- (1.) This judgment will dispose of two petitions-Civil Revision Nos. 1038 and 1049 of 1978-in which a common question of law is involved.
(2.) By the impugned order, the request of the defendant to appear as this own witness was declined in view of the provisions of rule 3A of Order 18, Code of Civil Procedure because he failed to appear in the witness box before examining his other evidence. The said rule 3A does not lay down an absolute bar and only provides that he would not be entitled to examine himself at a latter stage unless the Court for reasons to be recorded permits him to do so. The trial Court for its view relied on Jagannath Nayak v. Laxminarayan Thakur and others, 1978 AIR(Ori) 1 wherein it was held that the permission of the Court must be sought for at the time when the party is to commence leading his evidence and not after violating the provision. This decision was considered by Sharma, J. in Niranjan Lal v. Punjab State Electricity Board, Patiala and others, 1978 80 PunLR 412, and it was held :- "that 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 cost or not." The view taken by the Orissa High Court, therefore, was not followed by this Court and I have no reason to differ with the view taken by Sharma, J., of the provision of Rule 3A of Order 18, Code of Civil Procedure.
(3.) As the trial Court did not record any reason for declining the request of the defendant to appear as his own witness at a later stage and declined his request simply on the basis of the decision of the Orissa High Court referred to above, I quash the impugned order and send back the case to the trial Court for fresh decision on the request of the defendant to appear as his own witness. The parties through their counsel, have been directed to appear in the trial Court on October 9, 1978. No costs.;