1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.3677 of 2010 Aminabai Abdul Hussein Contractor (deceased) by Lrs Siraj Abdul Hussein Contractor ... Petitioner versus Sultan R. Makani (deceased) by Lrs Sakkar Wd/o Sultan Makani & ors. ... Respondents ... Ms.S.M.Mudbidri i/b S.W.Kulkaarni for the petitioner. CORAM : D.G. KARNIK, J. DATED : 12th July 2010 P.C. 1. By this petition, petitioner (original plaintiff no.1A) challenges the judgment and order dated 16 March 2009 passed by the Judge, Small Causes Court, Bombay rejecting his application for permission to examine himself as a witness. 2. After the death of original plaintiff, his five heirs were brought on record as plaintiff nos.1A to 1E. Plaintiff no.1A examined his son as a Power of Attorney and witness on behalf of himself and all the plaintiffs. Similarly, plaintiffs also examined plaintiff no.1C as a witness on their behalf. Thereafter, the plaintiff no.1A made an application for 2 permission to examine himself as a witness and permission to file his own affidavit in lieu of examination in chief. By the impugned order, the application was rejected. 3. Order 18 Rule 3A of the Code of Civil Procedure ( for short “the Code”) provides that where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf unless the court, for reasons to be recorded, permits him to appear as his own witness at a later stage. The trial Judge held that since permission of the court was not sought prior to examination of plaintiff no.1C as also son of plaintiff no.1A as a witness, the application could not be granted. Relying upon a decision of Orissa High Court in Maguni Dei Vs. Gouranga Sahu & ors., AIR 1978 ORISSA, 228, learned counsel submitted that provision of Order 18 Rule 3A of the Code are directory and court has ample powers to allow the plaintiff to be examined as a witness on his own behalf even after the other witnesses were examined. The Orissa High Court has further held that in a proper case, court has a power to examine a party at a later stage even though he has not obtained the court’s previous permission as provided in the rule. The thrust of the decision of the Orissa High Court is that the permission though should generally be obtained prior to the examining of any witness before a party, such permission can be obtained even after the witness has been examined. In that sense, the Rule is directory but it is not directory in the sense that a party can examine as a witness after any other witness is examined as of right and without the leave of the court. Leave must be obtained. The Orissa High Court only held that leave can be obtained even subsequently. 3 4. In the present case, in my view, sufficient ground has not been made out for granting leave under Order 18 Rule 3A of the Code. Plaintiff nos.1A to 1E are all legal representatives of the original plaintiff. Plaintiff no.1C examined himself on behalf of all the legal representatives. Not only that the plaintiff also examined his own son as his Power of Attorney holder. When the plaintiff examined his own power of attorney, the power of attorney gave evidence as the plaintiff, subject of course, to the limitations as laid down by the Supreme Court in the case of Janki Vashdeo Bhojwani & Anr Vs. Indusind Bank Ltd. & ors (Civil Appeal No.6790 of 2003 decided on 6 December 2004). As such, the discretion exercised by the trial court in refusing leave to the petitioner – original plaintiff no.1A to examine himself in addition to the two other co-plaintiffs and one witness cannot be said to suffer from any error in law. Writ Petition is rejected summarily. (D.G. KARNIK,J.)