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Judgment
Shiv Kumar Sharma, J.—Instant revision has been preferred by the plaintiff-petitioner impugning the order dated April 15, 1999 of the learned Additional Civil Judge (Junior Division) No. 5, Jaipur City whereby her application under Order 18, Rule 2 read with Order 26, Rule 1 and Section 151, CPC was rejected.
Brief resume of the facts is that the plaintiff-petitioner (for short the plaintiff) instituted a suit for perpetual injunction against the defendant-respondents (for short the defendants). The plaintiff on March 26, 1992 executed ''General Power of Attorney'' in favour of Nand Kishore Saraf to take up all the proceedings on her behalf in the aforesaid suit. Nand Kishore Suraf thereafter got examined himself as P.W. 1 in the capacity of the plaintiff. Evidence of the defendants was closed on December 11, 1998 and the case was posted for final arguments. The plaintiff on January 6, 1999 moved an application under Order 18, Rule 2 read with Order 26, Rule 1 and Section 151, CPC to examine herself on commission on the ground that earlier she had not examined herself as a witness under the impression that examination of her attorney as a witness would suffice but in view of ratio of Ram Prasad Vs. Hari Narain and Others, her examination as a witness is necessary. The defendants opposed the application by filing reply. Learned Court below rejected the application as indicated hereinabove.
It was canvassed on behalf of the plaintiff that on the advise of the counsel the power of attorney holder Nand Kishore Saraf was examined as a party. The plaintiff had not examined herself as a witness under the impression that examination of power of attorney holder as a witness would suffice the purpose. But in view of settled legal position the plaintiff subsequently decided to examine herself as a witness and the Court below ought to have permitted her examination on commission. Reliance was placed on Khadi Kissan Vs. Thubra Kissan and Another, Om Parkash Vs. Sarupa and Others, Alekh Pradhan and Others Vs. Bhramar Pal and Another, Wasudeo Sonone and Another Vs. Jagannath Ramlalji Jugele,
On the other hand it was urged that there was no jurisdictional error in the impugned order. If the plaintiff herself intended to appear as a witness she had to appear before any other witness on her behalf had been examined as per the provisions of Order 18, Rule 3-A. It was also contended that as per observations of this Court in Gulab Devi Vs. Bhagwan Sahai, the power of attorney holder of a party can appear as a witness on behalf of the party. This judgment was not considered in Ram Prasad Vs. Hari Narain and Others, therefore, matter should be referred to a larger Bench to decide the controversy.
I have pondered over the rival submissions and carefully weighed the material on record as well as the legal position.
Rule 3-A inserted in Order 18 by Amendment Act 1976 lays down 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 reason to be recorded permits him to appear as his own witness at a later stage. A Division Bench of Orissa High Court in Maguni Dei Vs. Gouranga Sahu and Others, held that Rule 3-A of Order 18 is of directory nature. In proper cases the Court has got power to examine a party at a later stage even though he has not obtained the Court''s permission as provided in the rule.
From the facts of the present case it is evident that the plaintiff a housewife, had executed a power of attorney in favour of Nand Kishore Saraf for taking necessary steps in the suit. Nand Kishore was examined as PW-1 in the suit. Under these circumstances the plaintiff might have under the bona fide belief that her examination in the case was not necessary. It does not appear that the plaintiff deliberately and purposefully withheld herself from the witness box. If a party has acted in good faith it is just and fair to permit him/her to examine himself/herself at a later stage. The Court is not absolutely helpless in the matter. Order 18, Rule 17-A vests discretion in the Court to permit a party to produce any evidence at a later stage if the party satisfies the Court that notwithstanding the exercise of due diligence by the party, the evidence could not have been produced at the time it was taken. The enabling provision under Order 18, Rule 2 (4) and 17-A had been made in order to avoid additional evidence to be adduced at the appellate stage, and to take away the rigor hitherto obtaining in shutting out evidence which would not be produced in time and which would be very relevant for proper determination of the dispute between the parties. The rules cannot be interpreted in a manner which defeats the cause of justice.
In Gulab Devi Vs. Bhagwan Sahai, this Court (Hon''ble Singhal J. as he then was) held that it was open to the plaintiff to examine her witnesses and the trial Court committed jurisdictional error when it denied that right to the plaintiff and refused to examine her attorney as her witness. In the said case the trial Court directed the plaintiff to record her own statement in support of her claim in the suit and refused to examine her attorney as her witness. It was indicated thus-
"The position of the law has been examined and stated as follows in Morno Moyee Debee v. Bheem Coomar Chowadhry, (1866) 6 SWR 231. Now, it is not the business of the Court to determine what witnesses shall be examined, the parties must select their own witnesses and call upon the Court to examine such of them as they may offer for examination."
In the said case this Court did not consider in detail this aspect as to whether word ''acts'' in Order 3, Rule 2, CPC includes acts of attorney to appear as a witness on behalf of a party. Reference to examine the attorney as a witness was only made in the context of right of the Court in making selection of witnesses. Whereas in Ram Prasad Vs. Hari Narain and Others, after scrutiny of Order 3, Rule 2 it was indicated that power of attorney holder of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case, he can state on oath but he cannot appear as witness on behalf of the party in the capacity of the party. It was categorically held that word ''acts'' used in Rule 2 of Order 3, CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Thus case of Gulab Devi Vs. Bhagwan Sahai, is distinguishable and it is not necessary to refer the matter to a larger Bench.
I do not agree with the observations of the trial Court that act of seeking opportunity to examine herself by the plaintiff on commission includes two different reliefs and two independent applications ought to have been filed by the plaintiff. To my mind one application was competent as it was filed in respect of a composite relief. I am of the considered opinion that the impugned order suffers from error of jurisdiction and, if it is allowed to stand the plaintiff would suffer irreparable loss.
In the result the revision succeeds and is hereby allowed. The impugned order is set aside. While allowing the application of the plaintiff under Order 18, Rule 2 read with Order 26, Rule 1 and Section 151, CPC, I direct the learned Court below to appoint a Commissioner to record the statement of the plaintiff. Costs in the sum of Rs. 800/- shall be paid by the plaintiff to the defendants. I, however, clarify that the defendants shall be entitled to adduce evidence in rebuttal if they so desire.