(1) WP 452.2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 452 OF 2006 M/s. Patel Narayandas Bhagwandas Fertilizers Pvt. Ltd., Through Director, Pravinchandra Jinabai Patel, Age : 58 years, Occu.: Business, R/o. 232/2B, Plot No.9, Near Book Bond Colony, Jalgaon, Taluka and District Jalgaon PETITIONER (Ori. Plaintiff) VERSUS 1. Abdullah Yusufji & Sons Partnership Firm 2. Firoz Esabhai Merchant, Age : Major, Occu.: Business 3. Mansur Isabhai Merchant, Age : Major, Occu.: Business 4. Maad Mustansir Merchant, Age : Major, Occu.: Business All R/o. M/s. Abdulla Yusufji & Sons, Dondaicha Road, Shahada, Taluka Shahada, District Dhule RESPONDENTS (Ori. Defendants) ..... Mr. A.S. Bajaj, Advocate for the Petitioner. Mr. Milind Patil, Advocate for the Respondents. ..... CORAM : V.R. KINGAONKAR, J. DATED : 7TH JANUARY, 2011 ORAL JUDGMENT:- 1. By this Petition, the petitioner challenges the order dated 5.3.2005 rendered by learned 3rd Adhoc (2) WP 452.2006 Additional District Judge, Jalgaon seeking permission to examine witness in Special Civil Suit no.75 of 2000. The suit was filed by the petitioner for recovery of certain amount on basis of the accounts. The petitioner examined its general power of attorney as P.W.1. After examination of the G.P.A, with the leave of the trial Court, the plaint was amended. The petitioner (plaintiff) gave details of the bills and the lorry receipts in order to demonstrate the delivery of the stock to the defendants. The petitioner thereafter sought leave to examine one of the director of the company in order to prove the transactions which are indicated in the amended part of the plaint. That application came to be rejected vide the impugned order on the ground that it was impermissible because no prior permission was sought under Order 18 Rule 3A of the C.P. Code. 2. Heard learned counsel for the parties. 3. The only question involved in this Petition is whether the examination of the director of the petitioner-company could be refused for the reason that prior permission was not obtained under Order 18 (3) WP 452.2006 Rule 3A of the C.P. Code before the G.P.A. of the petitioner was put in the witness box? 4. The relevant provision of Rule 3A of Order 18 of the C.P. Code reads as follows:- "3-A Party to appear before other witnesses - 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." Plain reading of Rule 3 A would make it amply clear that it does not speak of any prior permission as such. Last portion of Rule 3-A would make it amply clear that the party himself may appear as his own witness at a later stage if the Court will permit such examination. The issue is no more res-integra. In "Sanjay Narayanrao Barde and anr. Vs. Sau. Vimal Keshaorao Bairam and ors. (AIR 2000 BOMBAY 384)" a Single Bench of this Court held that such permission can be obtained even at a later stage after examining the witness. It is further held that the provision is not mandatory but is directory in nature. The (4) WP 452.2006 procedure could not have been utilised to shut the petitioner's (plaintiff's) way of leading the evidence in order to prove the amended part of the plaint. The learned Adhoc Additional District Judge observed that the examination of the director was sought in order to fill up the lacuna left by the P.W. 1 who is the power of attorney holder of the petitioner. In fact, the impugned order does not show what was the lacuna left by the P.W.1 and how it was being sought to be filled due to examination of the director as P.W.2. The Apex Court in "Janki Vashdeo Bhojwani and anr. V. Indusind Bank Ltd. and ors. AIR 2005 SC 439" held that: "The power of attorney holder cannot depose in place of and instead of the principle." It is obvious therefore that P.W. 1 as general power of attorney holder had no competency to depose in place of the petitioner. This aspect is completely overlooked by the trial Court. 5. It is worthy to be noted that Rule 3A of Order 18 of the C.P. Code, in fact, provides for allowing examination of the plaintiff as a witness in the first phase before the examination of other witness. The director of the company is himself in (5) WP 452.2006 position of the plaintiff and is in a better position to represent the petitioner-company than that of the G.P.A. He is not a stranger or an independent witness as such. Consequently, it cannot be said that the director has no right to enter the witness box because the G.P.A. was examined without reservation of the right to examine any witness of the plaintiff (petitioner). Under the circumstances, the impugned order is improper an illegal. 6. In the result, the Petition is allowed. The impugned order is set aside. The trial Court to allow the examination of the director as witness. Rule made absolute accordingly. No costs. Sd/- [V. R. KINGAONKAR, J.] arp