Bahar Shah vs Harday Nath and Anr.

This revision is directed against an order passed on 25101980 by the Sub Judge C. J. M. Srinagar permitting the plaintiff to examine himself as

his own witness. Several issues were framed in the case the burden of some of which lay on the plaintiff and of others on the defendent. The

defeadent led his evidence in respect of the issues the burden whereof was on him. Thereafter the plaintiff led his evidence in support of the issues,

the burden whereof was on him as also in rebuttal to the issues the burden whereof lay on the defendant. He closed his evidence reserving the right

to examine himself as his own witness after the defendent had led evidence in rebuttal to the issues the burden whereof lay on the plaintiff. The

defendant did not object to this course being adopted He even led his rebuttal evidence but subsequently when the plaintiff appeared to examine

himself as his own witness, the defendant objected to it on the ground that it would prejudice his case in as much as he would have no opportunity

to rebut the evidence of the plaintiff. The trial court over ruled the objection and passed an order permitting the plaintiff to examine himself as his

own witness.

The defendant's contention is that in the normal course the plaintiff's examination should have been completed before the defendant was called

upon to produce the rebuttal evidence and that a course to the contrary adopted by the trial court was erroneous in law and could not be justified

on the basis of estoppel. He further contends that in any event if the court had allowed the plaintiff to examine himself as his own witness, he should

have left it open to the defendant to rebut his statement and that all he wants to do is to examine himself, if necessary, after the plaintiff has been

examined as his own witness by the court. The course suggested by the defendant is fairly reasonable and should be allowed to be adopted, of

course, on payment of costs. I, therefore, modify the order of the trial court to the extent that after the Plaintiff has been examined, the defendant

shall be given a chance to examine himself in rebuttal provided he pays a sum of Rs 50/ (rupees fifty) as costs. The revision is disposed of

accordingly. The parties are directed to appear before the trial court on 15th October, 1982.

Lest there should be any misunderstanding let me make it clear, that the examination of the defendant shall be confined to those assents of the

plaintiff's statement only about which a right of rebuttal might accrue to him on the basis of the issues framed in the case.