Kh.Ghulam Mohd. vs Jolly Arts

Plaintiff Kh. Ghulam Mohd. instituted a civil suit No. 78/1982 in the Court of Sub Judge (Judge Small Causes Court) Srinagar for recovery of

Rs. 9900/ as damages for use and occupation of the premises ""M/S Jolly Arts"" situated at Residency Road, Srinagar with interest on grounds

pleaded thereto. After the written statement was filed, plaintiff was directed to lead evidence on the issues raised vide order of the trial court dated

1381984. When the evidence of the plaintiff was in pipe line, the plaintiff wanted to tender his evidence as his own witness. The other side

objected and the trial court on 231988 disallowed the prayer of the plaintiff to appear as his own witness. The order is impugned in this revision.

The respondents have been set exparte by Bench order dated 1091988. Petitioner/Plaintiff has been heard. The impugned order has been

challenged on the ground that at no stage court directed the plaintiff to depose as his own witness before the statement of the other witnesses could

be recorded. In absence of any such direction, the trial court could not have foreclosed the recording of the statement of the plaintiff. After all

procedural rules are meant to advance the cause of justice rather than to hamper it. The trial court had the discretion to allow the plaintiff to be

examined even at a later stage in exercise of its discretion.

The counsel for the petitioner has canvassed that the impugned order is unjust and the provision of Rule 3A of Order 18 C.P.C, which require

party to appear as his own witness ahead, of his other witnesses has been enforced in 1983 and the plaintiff was ignorant of the provision and the

Court at no stage of proceeding directed opening of plaintiff's evidence with the recording of plaintiff's statement first. The orders on record would

reveal that the trial court has been all along recording the statement of plaintiff's witnesses till the other side raised the objection.

It appears that the Court has approached the matter mechanically and at no stage applied its mind to the question whether the plaintiff, in the

facts of the case, could be allowed to appear as his own witness, even at a later stage as is provided by Order XVIII Rule 3 of Civil Procedure

Code. The trial court has allowed the plaintiff to examine the witnesses, even without complying with the provisions of Rule I of Order XVI C.P.C.

which require parties to present the list of witnesses whom they propose to call to give evidence or to produce documents and to obtain summons

for them for appearance before the Court. If the proceedings have been taken and the statements recorded in routine without complying with the

rule provisions of C.P.C, sudden awakening of the trial court to close the statement of the plaintiff as his own witness does not appear to be just

and proper. The trial Court has not even recorded the reasons for refusing to allow the plaintiff to be examined at the later stage in terms of

provisions of Rule 3 of Order XVIII C.P.C. Mere reference to the rule and expressing its inability to allow the plaintiff to tender his statement on a

hyper technical view of the matter is not same thing as recording of the reasons. The impugned order suffers from illegal exercise of jurisdiction.

For the aforesaid reasons, the impugned order is set aside and the trial court is directed to record the statement of the plaintiff as his own

witness before proceeding further in the matter in accordance with law. Before proceeding further in the matter, the trial court shall issue notice for

appearance to the respondent/defendant.

Record be sent back to the court concerned after due completion.