N. M. KASLIWAL, J. - (1.) A short but interesting question of law is involved in this revision, by the defendant, against an order of the Additional District Judge No. 1, Jaipur City, dated January 2, 1979, and January 27, 1979, passed in Civil Suit No. 69 of 1976.
(2.) SHORN of unnecessary details, the facts necessary for the decision of this revision are that the plaintiff-respondents Nos. 1 to 9 filed a suit for eviction against the petitioner and a number of other defendants. On August 22, 1972, the plaintiffs called the petitioner M. L. Mehta to appear as a witness on their behalf, though he was one of the defendants. From the statement of the defendant-petitioner recorded on that day it appears that some objection was raised on behalf of the learned counsel for the defendants that the plaintiffs should not be allowed to record the statement of the other party, but the Court did not allow that objection on the ground that the witness had been administered oath and he has deposed a few lines in the examination-in-chief. From the statement of the petitioner it is not clear as to whether the counsel for other defendants had raised this objection or whether the counsel representing the petitioner had raised this objection. The case then lingered on for the evidence of the plaintiffs and their witnesses and thereafter the evidence on behalf of some of the defendants was also examined From a perusal of the order-sheets it appears that on October 12, 1978, when the defendant-petitioner wanted to appear as a witness, the learned counsel for the plaintiffs stated that he had no objection in the statement of the petitioner being recorded. However, it seems that the Court it-self wanted to decide the question whether the petitioner, who had already appeared as a witness, should be allowed or not to appear again. The case then lingered on for one reason or the other and ultimately this question was considered by the Court on January 2, 1979, The learned trial Court took the view that as the defendant-petitioner has already appeared as a witness, though on behalf of the plaintiffs, he had no right to appear again, even in support of his own case. Subsequently on January 27, 1979, the trial Court closed the evidence of the defendant-petitioner as regards other witnesses also to be produced by him. Mr. Kasliwal, learned counsel appearing on behalf of the plaintiff-respondents has first raised a preliminary objection that one revision against both the orders dated January 2. 1979, and January 27, 1979, was not maintainable and the petitioner may be asked to choose as to against which order he has preferred this revision. I see no force in this preliminary objection in the view, which I am presently taking in this case. In my view the main order was dated January 2, 1979, by which the defendant himself was disallowed to appear as a witness and the subsequent order dated January 27, 1979, can only be considered as a consequential order of the order dated January 2,1979. There is a provision under Order 18 Rule 3 (A), Code of Civil Procedure, that a party himself will first appear as a witness and thereafter he shall examine the other witnesses, unless otherwise permitted by the Court. As in the present case the defendant was disallowed to appear as a witness on January 2, 1979, there was no question of leading evidence of other witnesses or any other person. If the order dated January 2, 1979 is set-aside, then the order dated January 27, 1979 automatically falls. Thus the main question which calls for determination is whether the trial Court was justified in taking the view that as the petitioner has appeared as a witness on 22nd August, 1972, he has no right to appear again as a defendant in support of his own case. It may be mentioned at the out-set that there is no provision in the Code of Civil Procedure or the Evidence Act specifically laying down that the petitioner-defendant once having appeared as a witness on behalf of the plaintiff cannot be allowed to appear as a witness in support of his own case. Order 18, Code of Civil Procedure lays down the provision for the hearing of the suit and examination of witnesses. According to Rule 1 of Order 18, the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either any point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks in which case the defendant has right to begin. In the present case there is no controversy about the right to begin and the plaintiff led his evidence first according to this provision. Under Rule 2 of Order 18 the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. Thereafter under clause (2) of sub-rule (2) of Order 18, the other party shall state his case and produce his evidence (if any) may then address the court generally on the whole case. Thus, according to the procedure laid down in the above provisions after the party having right to begin, has stated his case and produced the evidence, thereafter the other party gets a right to state his case and produce the evidence. A party in a suit should not and does not ordinarily call the other party to appear as his witness. A party calling the other party as his own witness has been deprecated by the courts in our country. Thus, it was not proper for the plaintiff to have called the defendant-petitioner to appear as a witness on his behalf but in any case that stage is not in controversy now before me. Though an objection in this regard was raised at that stage but the Court over-ruled such objection and thus it was not within the power of the defendant-petitioner to have refused to appear as a witness when he was called was also over-ruled by the Court. The contention of the learned counsel for the plaintiff non-petitioner in this regard is that rightly or wrongly when the defendant-petitioner had appeared as a witness, he could have stated his entire case in examination-in-chief or his case should have been stated by putting questions in cross-examination. If he was not prevented to do so and there was no such bar under the law, the witness should not be allowed to appear again. It is also contended that it was to the advantage of the defendant to have appeared as a witness on behalf of the plaintiff, that he could have proved his case also and could have taken the advantage of the position by stating his own case without the risk of being cross-examined by the plaintiff, I am not impressed by the above argument. The question to be determined is whether in such circumstances a defendant can be denied his right to appear as a witness in support of his own case when his right to begin and state his case arises. In such a situation where the party calling the adversary as his witness, the adversary may take advantage and state his entire case and take advantage as suggested by the plaintiff-respondents, but if the defendant does not want to disclose his case at that stage and only wants to restrain himself by answering questions put to him in the examination-in-chief he cannot be denied a right to appear as a witness in support of his own case merely on the ground that he has been compelled to appear as a witness on behalf of the other party. In such circumstances the case may arise where the defendant is called as a witness by the plaintiff only after examining a few witnesses. After his statement many other witnesses of the plaintiff might be examined and witnesses on behalf of the other defendants, where the interest of all the defendants may hot can never be justified to hold that such defendant should be bound to disclose his entire case as it cannot be expected at that stage from him to admit the entire case; which could not be in his knowledge. Even otherwise the proper stage for a defendant to state his case and record evidence arises only when the plaintiff had closed' his entire evidence. In the trial of a case to apply the principles of justice and fair play, an adversary can only be called upon to disclose his entire case and start his evidence, when the other party has closed his evidence. Though there is no authority cited by either of the parties directly relevant to the question in issue, however, Mr. Bandhu, learned counsel for the petitioner drew my attention to A. I. R. Manual Volume 4, 4th Edition, in which a reference is made to a case under Order 18 Rule 2 on page 651. According to the notes of the case 1978 All. W. C. 809, is has been observed; "the examination of a defendant in support of the plaintiff's case cannot bar him (defendant) from examining himself in support of his own case or for disproving the plaintiff's case particularly in respect of which plaintiff may have examined witness after he had examined the defendant. " A party appears in the witness-box not only in support of his own case but for disproving the case put forward by his adversary. In the case before me such a situation has arisen that the defendant-petitioner was examined as PW 4 by the plaintiff but after him three more witnesses were examined on behalf of the platntiff and witnesses on behalf of other defendants had also been examined prior to 2nd January, 1979 when the defendant-petitioner was to appear in support of his own case. I am constrained to observe that although the learned counsel for the plaintiffs had no objection in allowing the defendant-petitioner to be examined again as is apparent from the order-sheet dated 12th October. 1978, on account of anxiety to get the case disposed of at the earliest as it was a very old rase, but the court itself raised such an objection and that is why the trial of the case could not be concluded till now. In the result this revision is allowed. The orders passed by the trial Court dated 2nd January, 1979, and 27th January, 1979. are set aside and the defendant-petitioner is allowed to appear himself as a witness as well as to lead evidence in support of his own case. As the case is very old one and pending since 1970, the trial Court is directed to decide this case as expeditiously as possible. The parties are directed to appear in the court of Additional District Judge No. 7, Jaipur City, on 24th November. 1980, as already fixed by it. The parties shall bear their own costs of this revision. The record of the case may be returned back to the trial Court forthwith. . ;