The rule does not state that if a petition is not subsequently filed by the plaintiff for permission to be examined as a witness, the Court has the power to entertain or allow such a prayer. If a narrow interpretation is applied to Rule 3-A, then this provision, which has been introduced along with Rule 3-A, will be rendered nugatory, at least as far as the party itself is concerned.

On a harmonious construction of these two provisions, the view taken by the Munsif is erroneous, and he has acted illegally and with material irregularity in rejecting the plaintiff's prayer to examine himself as a witness. Though it is within the Court's discretionary power to allow parties to introduce additional evidence at any stage of the trial, such power should be exercised sparingly, to prevent abuse.

If the Court decides to invoke this provision, it must ensure that the trial is not unnecessarily prolonged on this basis. "No prejudice is caused to either party" is also not a valid ground for invoking Rule 17. Thus, there is no merit in the arguments of the counsel representing the husband that no prejudice would be caused if the order passed by the District Judge is upheld; rather, it would help to ascertain the truth.

The matter has been repeatedly adjourned on various pretexts at the request of counsel representing the parties. Therefore, this Court, having noted that the existence of the audio CD sought to be introduced as additional evidence was known to the husband before the trial commenced and when the evidence was being led, concludes that the application filed under Order XVII, Rule 17-A, CPC, is merely an attempt to delay the trial and, as such, deserves to be dismissed.

A careful reading of Order XVIII, Rule 3, CPC reveals that the option to reserve the right to present rebuttal evidence is available to the plaintiff only if the plaintiff abstains from presenting evidence on Issue No. 3, where the burden of proof lies on the defendant.

End Notes:

• Shobha v. Behari Lal, AIR 1981 HP 18.
• Inderdeo Sah v. Dharmadeo Mahto, 1981 BLJR 729.

Written By: S Kundu & Associates
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