HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. C227) No. 4959 of2008 Smt Versha Rani Nag Vs. Herald Vinay Nadan Post ofpronouncement ofjudgment and orders on \\ /05/2009. Sd/- N.K.Agarwal Judge -^ L HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. (227)No. 4959 of2008 Petitioner Defendasit Respondents Plaintiff Smt. Versha Rani Nag, wife of Herald Viiiay Nandan, aged about 33 years, resident ofKatora Talab, Raipur, Tahsil & Distt. Raipur, Chhattisgarh. .Versus Herald Vinay Nadan, aged about 33 yews, son of late D.N. Nadan, resident of Shanti Nagar Ward^ Jagdalpur, Tahsil Jagdalpur, Distt, Bastar, Chhattisgarh. Writ Petition under Article 227 ofthe Constitution oflndia (Single Bench: Hon'ble Mr. N.K. Agarwal, J.) Present : Shri Sanjay K. Agrawal with Shri Sourabh Sharma, Advocates for tlie petitioner. Ms. Deepali Pandey, Advocate for the respondent. ORDER (Passedon, _dayofMay,2009) The instant petition is directed against the order dated 25.06.2008 (Armexiire P/l), passed by Ihe Family Court, Raipur (CG), in Civil Suit No. 189-A//07, whereby the objections raised by non applicant petitioner herein, under section 151 ofCPC has been rejected. The brieffacts ofthe case are that, the respondent herein instituted a petition under Section 10 of Indian Divorce Act 1869, on 08.10.2007, against the petitioner herein. On 13.02.2008, the respondent filed affidavit of himself and two witnesses namely Sanjeev Nadan and Rajeev John, under Order 18 Rule 4 ofCPC, and also prayed to examine his witnesses before the exammation of respondent himself. Prayer was allowed by the family court and on that day the petitioner cross examined witnesses B, John and Smt, Sushila Nada.n and matter was fixed after lunch for cross \0,9 examination of other witnesses. On the later part of the day, the petitioner herein prayed for sometime for cross examination of witnesses. Time was gi-anted. Again^ on 12,03.08 and also on other dates the case was adjoumed on the prayer of petitioner, and then, the petitioner filed an application under Section 151 of CPC for examination of respondent before the examination of other witnesses. The said prayer was rejected by the family court. Hence this petition. Leamed counsel appeaning for the petitioner submits that imder Order 18 Rule 3-A of CPC, other witaesses camiot be examined before examination ofparty hims^lf, unless the court, for reasons to be recorded, permits him to appear as his own witness at a later stage. For this, he placed reliance upon the judgment of Supreme Court passed in the matter ofDevinder Singh and Others Vs. State of Punjab and Others which reads as under: "55. The approach of tiie High Court in this behalf, in our opimon, is totally eiToneous. A provision of a statiite is either mandatory or directory. Even, if a provision is directory, the same should be substantially complied with. It camiot be ignored in its entirety oiily because the provision is held to be directory and not an imperative one." Per contra, leamed counsel appearing for the respondent submits that vide order dated 13.02.2008, permission was granted by the family court for examination of party himself at a later stage and it was never challenged by the petitioner, and supported the order passed by the family court. The respondent placed reliance in case of C. Sesha Reddy Vs. T. Basavana Goud which reads as under : '^ 1 2008 (1) SCC 728 2 AIR. 2003 Kamataka 335 6. ^yun "6. A close reading of the provision of Rule 3A indicates that tlie insistence of exaniiiiation of a party as a first witness is not an mviolable mle and the mle itself provides an exception. May be that the court has to assign reasons for giving such pemiission. In the instant case, thei'e is a breach of Rule 3A, but at the time of examination of the plamtifF as PW 2, the defendant has not objected and the evidence has been recorded. Thereby in the context of facts, it should be coiistmed that there has been an implied permission granted by the court. The provisions ofOrder 18 Rule 3A ai'e not mandaton/7 and does not necessarilv visit with the consequences rendermg such evidence a nullity. The decision ofthe Patna High Court in the case of Pravesh Kumari Vs. Rishiprashad reported in AIR 1986 Patna 315 supports the view taken by me. Though there has been a breach of provision of Rule 3A, the evidence of the plaintiff carinot be igiiored and over looked as a nullity and it is only a venial breach not vitiating the effect of the evidence." After having heard counsel for the parties^ pemsal of records and impugned order, I have no hesitation to hold that the petition deserves to be rejected on two grounds firstly, the provisions under Order 18 Rule 3-A of CPC are undisputedly not mandatory and the family court exercised its discretion in favour of respondent, permitted him to adduce his own evidence at a later stage vide order dated 13.02.2008 which was never challenged by the petitioner. Secondly, this Court, in exercise ofits supervisory jurisdiction under Ailicle 227 of the Constitution of India, should refrain itself from mterfering with the order passed by the Court below, except in such cases where per^ersity, illegality, irregularity or jurisdictional error is writ large on the face of the record^ which is not in the present case. For the reasons mentioned hereinabove, this petition desen^es to be and is accordingly dismissed. No order asto costs. SA/- ^^d "*~juA^ ^