1. This petition is by defendant No. 4 in Title Suit No. 157 of 1974 filed in the court of Munsif, Jajpur. The plaintiffs - opposite parties 1 to 3 - filed the suit for setting aside a decree passed in an earlier suit, i.e, T.S No. 128 of 1971 on the ground that the said decree was obtained fraudulently, and for other consequential reliefs. The suit was set down for hearing on 18-3-77 on which date the Advocate for the plaintiffs and the defendant No. 4 filed haziras. The haziras filed by the petitioner (defendant No. 4) named eleven witnesses, of whom No. 1 was the petitioner himself. An endorsement had been made on that hazira that the petitioner (No. 1 witness) was present and that witnesses 2 to 11 would be present hereafter. This indicated that the petitioner himself was present to depose. At the instance of the plaintiffs the question of right to begin was mooted and decided against them and the plaintiffs were asked to adduce evidence first. P.W 1 was examined partly that day and on the next day, i.e, on 19-3-77 P.W 1 was cross-examined and defendants' Advocate, filed certain documents with a petition for permission to file the same. The court directed the witnesses in attendance to appear on the next date of hearing i.e, on 21-3-77. On 21-3-77 the parties were present and trial was resumed. Then the trial was adjourned to 22-3-77. While so adjourning, the court directed the witnesses present to appear on the adjourned date. On 22-3-77 the court examined some witnesses and the petitioner himself filed certain documents. On 23-3-77 the trial was resumed. Some witnesses on behalf of the plaintiffs were examined and the case was adjourned to 24-3-77. On this adjourned date of hearing trial was resumed and Advocate for the petitioner filed documents as per list with a petition for permission to file the same. He also filed another petition calling for certain documents from the court and a third petition calling upon the plaintiffs to produce certain documents. Some more witnesses for the plaintiffs were examined. On 25-3-77 trial was resumed and the last witness for the plaintiff was examined, cross-examined and discharged, and plaintiffs' side was closed. The petitioner opened evidence from his side by examining one witness and exhibiting certain documents. That witness, however, was not in his hazira of 18-3-77. On 26-3-77, three witnesses were examined, viz., D. Ws. 2, 3 and 4. Except D.W 4, who was a Commissioner appointed in the case, the other two witnesses also were outside the defendant's hazira dated 18-3-77. The hearing continued on 28-3-77 and was again adjourned to 30-3-77 for further hearing. On that day no new witness was examined except recalling some of the defence witnesses for re-examination. On 31-3-77, as appears from the ordersheet, both parties filed haziras and D.W 5, who was witness No. 5 in the petitioner's hazira dated 18-3-77, was examined. On 2-4-77 petitioner filed witness hazira naming two witnesses who were not in the hazira of 18-3-77, but D.W 6, a witness named in the hazira of the 18th, was examined. On 4-4-77, D.Ws 7 and 8 were examined. They were also not named in the hazira of 18th. Thereafter, the petitioner offered himself to be examined when the plaintiffs' counsel objected that his examination is barred under O. 18 R. 3A of the CPC. This objection of the plaintiffs' counsel was upheld by the learned trial court and permission was not granted to the petitioner (defendant No. 4) to be examined in view of O. 13 R. 3A by its impugned order dated 5-4-77. The present revision has been directed against that order.
2. On a perusal of the records of the trial court it appears that the petitioner did not file a list of witnesses he proposed to examine in the suit as required under R. 1 of O. 16 of the CPC. From the recitals of facts it will also be manifest that the petitioner (defendant No. 4) has examined witnesses who were not in the original hazira dated 18-3-77, and that though he himself was present on 18-3-77, and though from time to time the court directed the witnesses present to remain in attendance on subsequent dates, he chose not to examine himself until a very late stage and in the meantime was springing surprise on the plaintiffs by examining people of whom no earlier intimation had been given. It is to meet such situations, whereby a party is harassed by a manoeuvre or tact of the nature adopted by defendant No. 4 in this case, that the Law Commission recommended amendment of the Code of Civil Procedure and to introduce a provision whereby the party, if he desires to examine himself in the case, must do so at the first instance, unless for special reason the court permitted him to examine himself at a later stage in the proceeding. Whether the proposed amendment should be stringent in nature or be a liberal provision, leaving large discretion with the court to accord permission to a party to examine himself at a later stage in the proceeding, engaged attention of the Law Commission from time to time and, ultimately, the recommendation was to make such amended provision a stringent and strict one. The evil in the contemplation of the Law Commission was one which was identical in nature as the one apparent from the conduct of the petitioner in the present case. It would, therefore, be appropriate to extract the recommendations of the Law Commission from time to time. The Fourteenth Report of the Law Commission in para 71 at page 340 contains the following recommendation in respect of Order 18:—
“The parties to a proceeding should be in a position at the commencement of the proceedings to make up their minds whether they wish to give evidence. If they do wish, they should be required to enter the witness-box before any of their witnesses are examined. We recommend that R. 2 or R. 3 of O. XVIII of the CPC be suitably amended so as to embody such a provision.”
3. Twenty-seventh Report of the Law Commission at page 170 contains the following recommendation:—
“The Fourteenth Report has recommended that, ordinarily, a party who wishes to be examined as a witness should offer himself first, before the other witnesses are examined. It is, however, considered unnecessary to make any such statutory provision. This should be the ordinary rule; but a rigid provision on the subject does not seem to be desirable.”
4. Fifty-fourth Report of the Law Commission at page 160 contains the following recommendation:—
“We shall first refer to an important point regarding examination of the parties. The matter was considered in the earlier Report, but, as we take a different view, we propose to discuss it again.
The Fourteenth Report had recommended that ordinarily, a party who wishes to be examined as a witness should offer himself first, before the other witnesses are examined. The Commission, in its Report on the Code, however, considered it unnecessary to make any such statutory provision. It noted that this should be the ordinary rule, but thought that a rigid provision on the subject would not be desirable.
We think that the amendment recommended in the 14th Report should be carried out. Since the proposed rule will be confined to ordinary cases, the hardships arising from special features of the case, should not present a problem. Having regard to the persistent and notorious malpractice indulged in by litigants in this respect - malpractice which borders on dishonesty - We think that the time has come to insert a statutory provision.
Accordingly, we recommend the insertion of the following rule in Order 18:—
“3A. 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.”
5. This recommended provision was verbatim taken into the statute book.
6. This being the legislative background of R. 3A of O. 18 of the CPC, the intention of the Legislature in accepting the recommendation of the Law Commission in its Fifty-fourth Report, was to make it mandatory.
7. 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 permission must be obtained from the court before examining any witness on behalf of a party or after violating the provision, move the court 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. Obviously, he will be prejudiced in his cross-examination of the opponent's other witnesses tendered earlier. The main burden of argument of Mr. Patra is that R. 3A of O. 18 of the CPC is a procedural law and the object of all the procedural law being to advance the cause of justice and not to shut out evidence or to stifle the same, it must be liberally construed. It is true that this provision is a procedural one. But procedural law also can be made mandatory. The Law Commission's Report sets out the reason why the procedural law in this matter should be a stringent one so as to suppress all notorious malpractices bordering on dishonesty indulged in by the litigants. The object of this procedural law being to suppress a mischief must also be strictly construed.
8. If it is left open to a party to move the court to relax a rule and permit him to examine himself at a later stage, it would give scope for false or concocted reasons being put forward by the party. The various decisions cited by Mr. Patra which merely lay down general principles regarding procedural law and other general doctrines, like, no technicality will triumph over justice and what is needed is substantial compliance with law, do not appear to me to be relevant.
9. Even before R. 3A was introduced, Rules 1 and 2 of O. 18 indicated that though parties are entitled to select their own witnesses and fix the order of their examination, nevertheless, normally the plaintiff must first come in the witness-box to depose his case to be followed by corroborative evidence. The permissiveness of Rules 1 and 2 of O. 18 in allowing parties to examine themselves at the end of their other witnesses was not conducive to better administration of justice. This was so held in the case of Smt. Gurdial Kaur v. Pyara Singh, AIR 1962 Punj 180. Dua, J. (as he then was) observed as follows (at p. 181):—
“……It is true that the parties are entitled to select their own witnesses and the order in which they are to be examined but, at the same time, the spirit of the rules definitely suggests that normally speaking the plaintiff must first come in the witness-box to depose to his case to be followed by corroborative evidence. I am not unaware of the practice which has somehow developed and is in vogue in this State, according to which the parties generally come into the witness-box in the end of their evidence so as to be able to fill in any blanks or lacuna which may have been left by their corroborative evidence. Though this practice may not be in positive contravention of the literal import or language of the statutory provisions, yet it is difficult to hold if such a practice is conducive to better administration of justice.”
10. It is now clear that introduction of R. 3A and making it mandatory was obviously intended to serve administration of justice and not to stifle the cause of justice. The trial Court, therefore, has no further jurisdiction to permit a party to examine himself at a later stage in the absence of permission having been obtained at the commencement of his evidence.
11. It is true that affidavits of some local lawyers have been filed here to show that they were not aware of this provision in Code of Civil Procedure and that is put forward as sufficient reason for relaxing the rigour of the Rule and to permit the petitioner to examine himself. But, as I have indicated earlier, the stage for such permission is already over. The only remedy of the petitioner would be to get such an order from the appellate court on appeal, if he loses the suit in the trial Court. The appellate court may grant permission and remit the suit for examination of the petitioner. Such order of the appellate court would be deemed to be the order passed by the trial Court at the proper stage indicated in the R. 3A of O. 18 of the CPC before the defendant began leading his evidence. But so far as the trial Court is concerned, I am afraid, the stage for granting permission is over. That apart, the ground for condoning the lapse is ignorance of law on the part of the lawyers of the petitioner and I am doubtful whether such a reason would be a good reason, for, that would be contravening another legal maxim that ignorance of law is no excuse. However, this opinion of mine is not final and would not fetter the appellate court in coming to its own independent conclusion in the matter, if he is called upon to decide that matter.
12. In result, therefore, this Civil Revision fails and is dismissed. But there will be no order for costs.
13. Revision is dismissed without costs.
14. Revision dismissed.