Satyapal Singh vs Subhash Kumar Adhaulia

D.C. Srivastava, J.—By means of this revision u/s 115 Code of Civil Procedure, the order dated 6.1.1996 passed by VI Additional District Judge, Mainpuri has been challenged. By the impugned order the learned lower Court has granted permission to the Plaintiff-Opposite Party for being examined as a witness after he has examined his own witness earlier.

Learned Counsel for the parties have been heard. Learned Counsel for the revisionist has assailed the impugned order on two grounds. The first is that the impugned order is barred by principle analogous to res judicata because at two stages in the same proceeding''s the matter cannot be permitted to be agitated again which was already decided. The second ground in that no reason has been recorded in the impugned order for granting permission to the Plaintiff as envisaged under Order XVIII Rule 3-A Code of Civil Procedure. . . .

The brief facts are that on 20.9.1995 an application was moved by the Plaintiff in the Court below that the Plaintiff and his witnesses were present in the Court but the Plaintiff thought that the statement of his witnesses should be recorded first because the Defendant was exerting pressure upon the Plaintiff''s witnesses not to come on the next date and that the Plaintiff was feeling inconvenience in bringing the witness on each and every date. This application was disposed of by the following, order:

Heard. PW 1 has already been examined. So far examined himself nor he has applied for being examined so far. Application is moved subsequent to recording evidence of PW 1. Hence rejected at this stage.

Consequently another application was moved on 10.10.1995, in which prayer was made that the Plaintiff be permitted to be examined as a witness though one of his witnesses was examined on 29.9.1995. On this application objections were invited. This application was allowed through the impugned order.

For appreciating the applicability of the plea of res judicata, Section 11 CPC has to be recapitulated. It provides that no Court shall try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the parties. It has been contended that the principle of res judicata will apply in the sense that in the same proceedings at two stages different orders cannot be permitted to be passed. Pronouncements in Puranmal Bajoria Vs. Nagarmal and Others, , and Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, , Were referred.

Perusal of order dated 20.9.1995 reveals that there is no issue between the parties as to whether Plaintiff should be permitted to be examined after getting his one witness examined. This can be said because no objection was invited against application dated 20.9.1995 and the said application was rejected straight away on that day. Consequently, it cannot be said that there was any Issue between the parties which to be decided by the learned lower Court on 20.9.1995. Moreover, the words of the order dated 20.9.1995 "hence rejected at this stage" indicate that the Court had in its mind not for finally rejecting that application for all times to come.

Coming to Order XVIII Rule 3-A CPC it can be said that 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. This is purely procedural matter and provisions in this rule have been interpreted to be of directory nature and not mandatory character fond which the case reported in 1988(2) CCC 1077, can be referred. If the above provision is directory and not mandatory it cannot be said that any order contrary to law was passed by the lower Court under the impugned order. Principles ''Of res judicata under these circumstances can not be attracted....

Coming to the next ground that no reasons have been recorded by the lower Court an contemplated under Order XVIII Rule 3-A Code of Civil Procedure. Suffice it to Say that in the concluding portion of its order the Court below has observed that the grounds taken it,3 in the application 49-C are neither concocted nor it is outcome of development and after thought. The application was found to be bonafide and was liable to be allowed. With these observations and in the interest of justice and for the reasons disclosed above the lower Court rejected his application. Consequently it cannot be said that no ground has been given or no reason has been recorded in rejecting the application. There was thus compliance of Order XVIII Rule 3-A. I do not find any merit in this revision which is, summarily dismissed.