C.R.No.7284 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 03.5.2010. Mahabir Jain Kanya Pathshala Trust,Bhiwani and another -- Petitioners vs. Daya Krishan and others --Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Alok Jain,Advocate, for the petitioners Mr.Surinder Gandhi, Advocate,for respondent Nos.1 and 2. Rakesh Kumar Jain, J: This revision petition has arisen out of an order dated 24.11.2009 passed by Addl.District Judge- III, Bhiwani, vide which an application filed by the petitioners herein (respondent before the Court below) seeking direction against the respondents herein (petitioners before the Court below) to examine himself as a witness in terms of Order 18 Rule 3A of Code of Civil Procedure, 1908 (for short,CPC) has been dismissed. In brief, the facts of the case are that the respondents herein filed a petition under Section 74 of the Indian Trusts Act, 1982, for issuance of a direction to the petitioners herein to fill up the vacancies of five C.R.No.7284 of 2009 2 trustees of Mahabir Jain Kanya Pathshala Trust, which had occurred due to the death of five trustees of the aforesad Trust as per the terms and conditions of the Trust Deed dated 10.7.1968, compromise dated 23.10.1975 and order dated 23.10.1975 passed in Civil Suit No. 128 of 1973 titled as Rishab Chand Jain Vs. Guru Parshad Jain etc. While the respondents herein were leading their evidence, an application dated 06.4.2009 was filed by the petitioners herein under Order 18 Rule 3-A of CPC that the respondents herein should first examine himself as a witness if at all he wanted to appear in the witness box. The said application was contested by filing a reply dated 21.11.2009 and vide the impugned order dated 24.11.2009, the said application has been dismissed by the learned Court below after imposing a cost of Rs.1000/-. The case set up by the petitioners herein is that one of the witnesses, namely, Usha Jain had tendered her affidavit in examination-in- chief , but before her cross examination, the respondents herein should have first examined himself in terms of Order 18 Rule 3-A of the CPC. In reply, it was alleged that on 10.3.2009, the respondents herein had examined two witnesses, namely Chander Parkash Advocate as PW-2 and Davender Kumar, Photographer, as PW-3 who had been cross-examined and had also filed an affidavit of PW-1 Smt. Usha Jain, Principal of Mahabir Jain Montesary School, but on the request of learned counsel for the petitioners herein that he wanted to put some documents to the witnesses, the case was adjourned to 06.4.2009 and the said witness was not cross examined. An application for framing additional issue was rather filed which was dismissd on 11.11.2009 and the case was adjourned for evidence of the respondents herein for 19.11.2009. When the respondents C.R.No.7284 of 2009 3 herein summoned his witnesses, the petitioners herein, did not cross examine them, rather they filed the instant application to prolong the decision of this case. The learned Court below while dismissing the application of the petitioners herein has recorded that on 10.3.2009, statement of Balwan Singh AVRK was recorded who had produced the summoned file bearing No.128 of 28.5.1973 titled as Rishab Chander Vs. Siri Guru Parshad decided on 23.10.1975. Chander Parkash, Advocate, Civil Court, Bhiwani, was examined as PW-2 and Devender Kumar, Photographer as PW-3, whereas cross examination of PW-1 Usha Jain was deferred on the request of learned counsel for the petitioners herein on the ground that he wanted to cross exame the said witness on the basis of some documents and as such this witness was bound down for the next date i.e.6.4.2009. At that stage, learned counsel for the petitioners herein moved an application for framing of additional issue which was dismissed on 11.11.2009 and the case was fixed for 19.11.2009 for evidence of the respondents herein. On that date, two witnesses of the respondents herein were recorded but could not be cross examined because learned counsel for the petitioners herein moved the present application under Order 18 Rule 3-A of CPC. It is also recorded that the petitioners herein also moved an application for dismissal of the petition, which was dismissed on 22.7.2008. It is also recorded that witnesses namely Chander Parkash, Advocate as PW-2 and Balwan Singh, AVRK have already been recorded. The petitioners herein did not raise any objection about the examination of the respondents herein first before the examination of their other witnesses. The learned Court below found that effort of the petitioners herein is basically to prolong the matter and as such C.R.No.7284 of 2009 4 the application was dismissed with costs. Learned counsel for the petitioners herein has vehemently argued that Order 18 Rule 3-A of CPC mandates that a party who himself wishes to appear as his own witness should enter the witness box before any other witness on his behalf is examined as the word used in the said provision is 'shall' unless the Court for the reasons to be recorded permits him to appear as his own witness at a later stage. It is submitted that no permission has been sought by the respondents herein from the Court to appear as his own witnesss at a later stage. Therefore, it is submitted that the impugned order is patently illegal and without jurisdiction and is liable to be set aside. Learned counsel has relied upon a few precedents, namely Pargan Singh Vs.Gurmit Singh 2002 (1) R.C.R.(Civil) 17; N.C.Kaladharan Vs. Kamaleshwaran and others 2003 (1) P.L.R. 574; Harnam Singh Vs. Sobha Singh 1989 (2) P.L.R. 126 and Kishore Chand Vs. Life Insurance Corp. of India 2001 (2) R.C.R.(Civil) 200. On the other hand, learned counsel for the respondents herein has relied upon a Full Bench decision of this Court in the case of The Amritsar Improvement Trust Vs. Ishri Devi 1979 P.L.R, 354 to contend that the provisions of Order 18 Rule 3-A of CPC are directory in nature. I have heard both the learned counsel for the parties and have perused the record with their assistance. Before adverting to the arguments raised by learned counsel for the parties, it would be worthwhile to refer to the provisions of Order 18 Rule3-A of C.P.C. which reads as under:- [3-A. Party to appear before other witnesses.-- Where a party himself wishes to appear as a witness, he shall so appear before any C.R.No.7284 of 2009 5 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.]. In order to deal with the first argument raised by learned counsel for the petitioners herein in which he has submitted that the word used in the aforesaid provision is 'shall', therefore, rule is mandatory in nature. It would be suffice to say that a Full Bench of this Court in the case of Amritsar Improvement Trust (Supra) has authoritatively held that the provisions of Order 18 Rule 3-A of CPC are directory in nature. In order to deal with the second argument that the respondents herein had not even sought permission of the Court to be examined as his own witness at a later stage, therefore, he has to be examined as his own witness at the first instance as the stage of taking permission subsequent to the examination of his other witnesses is over. Again, the question has been decided by the Full Bench of this Court in Amritsar Improvement Trust (Supra), where in the question posed was as to 'whether permission of the Court for a party to appear as his own witness subsequent to his other witnesses should be obtained before the commencement of his evidence and not'. This question has been answered by the Full Bench observing thus:- “What however is significant to note herein is that the language of the statute does not in any way prescribe the precise time at which the permission to appear later is to be secured . It does not say that this must necessarily be in the very first instance before any witness has been examined on his behalf. One may,therefore say that the statute is silent as to the stage at which the permission is to be secured. Nor can it be said that by necessary intendment the legislature has laid down that the said C.R.No.7284 of 2009 6 permission must be sought at the very inception of the evidence and not later”. Thus, even if permission was not taken by the respondents herein to appear as own witness before the Court below before his other winesses have been examined, it does not debar to seek permission even now by moving an appropriate application. Insofar as various precedents cited by learned counsel for the petitioners herein are concerned, in the case of Pargan Singh (Supra), it has been held that though provisions of Order 18 Rule3-A of CPC are not mandatory but being directory require to be followed because by doing so, lot of evidence is cut short. In the case of N.C.Kaladharan(Supra), the appellant did not wish to appear as a witness in his suit as a result of which question of the priority of his examination at first instance loses its credence. In the case of Harnam Singh (Supra), the evidence of defendant's witnesses were over, after which the defendant wanted to examine himself as his own witness, which was not allowed by the trial Court on the ground that he should have examined himself first, but the said order was set aside on the ground that the Court should have allowed the defendant to come in witness box as he was present and did not seek any further date. The said order was, however, passed by burdening the defendants with costs. In the case of Kishore Chand (Supra), the petitioner did not appear as his own witness at the first instance and was not allowed to suffer on account of lapse on his part. It was held that technicalities of law should not be allowed to hamper the course of administration of justice and as such, revision was allowed subject to payment of costs of Rs.1000/-. Thus, the sum and substance of the above discussion is that the provisions of Order 18 Rule 3-A of CPC are not mandatory but are C.R.No.7284 of 2009 7 directory and the petitioner can seek permission of the Court even at a stage subsequent to the examination of some of his witnesses to appear as his own witness at a later stage. In view of the totality of facts and circumstances of this case, I do not find any merit in this revision petition and the same is hereby dismissed, however, without any order as to costs. 03.5. 2010 (Rakesh Kumar Jain) RR Judge