A. Pasayat, J.
1. Petitioner calls in question legality of order passed by learned Civil Judge (Senior Judge), First Court. Cuttack accepting prayer of defendant No. 1-opp. party No. 1 to the effect that her oral evidence be taken under Order 18, Rule 16 of the Code of Civil Procedure, 1908 (in short, 'CPC'). Application filed by opp. party No. 1 indicated the reason for seeking such examination to be that being an octogenarian old lady she was gradually losing her mental balance and wanted to go to her daughter's place at Gujarat which is beyond the territorial jurisdiction of the trial Court. In the peculiar circumstances the prayer was accepted.
2. Learned counsel for petitioner-plaintiff submitted that the expression 'at any time after institution of the suit' cannot be construed to mean at a point of time before written statement was filed. It is stated that some of the defendants have not yet entered appearance and/or have not filed their written statements. After they do so there may be necessity for further elucidation by defendant No. 1 of some relevant and material aspects. It is also submitted that the application was filed at a premature stage, when issues have not been framed. Mr. R. K. Sahu, learned counsel for opp. party No. 1 submitted that scope for cross examination by other defendants and by plaintiff, if necessity so arises, is not taken away by permitting examination of defendant No. 1 at the present juncture in view of the pressing circumstances indicated by her.
3. A few provisions are necessary for resolution of controversy. They are Rules, 1, 2 and, 16 of Order 18, CPC. They read as follows :
Order 18 'Hearing of the suit and examination of witnesses-
1. Right to begin--The plaintiff has the light to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
2. Statement and production of evidence--(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove,
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
(4) Notwithstanding anything contained in this rule, the Court, for reasons to be recorded direct or permit any part to examine any witness at any stage.
XX XX XX 16. Power to examine witness immediately--(1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner hereinbefore provided.
(2) Where such evidence is not taken forthwith in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties.
(3) The evidence so taken shall be read over to the witness and, if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit.'
Order 18 provides for hearing of the suit and examination of the witnesses. Rule 1 provides for circumstances under which defendant will have right to begin failing which the fight will be with the plaintiff. Rule 2 requires the parties to state their case before producing then-evidence. A party having right to begin has to produce evidence first and thereafter opposite party is required to produce his evidence. An explanation was appended to the said Rule by this Court's amendment on 7-6-1954. Sub-rule 4 which is almost to similar effect has been inserted in Rule 2, by Act 104 of 1976, by Section 69 operative with effect form 1-2-1977. It provides that notwithstanding anything contained in the rule, the Court may for the reasons to be recorded direct or permit any party to examine any witness at any stage. Rule 16 also empowers the Court to take evidence of a witness at any time after institution of the suit. This power can be exercised either on the application of any party or of the witness himself, where latter is about to leave jurisdiction of the Court. It is thus clear that in order to test the contingencies. Rule 2 can be departed and evidence of the witness can be recorded even before stage of recording of evidence the party has reached. Rules 1 and 2 of Order 18 provide that plaintiff has right to begin and shall produce his evidence in support of the issues which he is bound to prove. Thereafter other party shall produce his evidence. The right to begin follows the onus probindi as provided by Sections 101 to 114 of Indian Evidence Act, 1872 (in short, 'Evidence Act')- As a general rule, plaintiff has to prove his claim by positive proof, for the Court has to see whether there is proof of claim before it needs enquiry as to the truth or otherwise of the defence. Order 18, Rule 16 CPC shows that rule regarding onus of proof need not be followed in all circumstances. That rule provides that where a witness is about to leave the jurisdiction of Court or other sufficient cause is shown, why his evidence should be taken immediately the Court may take evidence 'forthwith' in the presence of parties or on a date fixed for examination after notice to the parties Evidence taken under this rule should be signed by witnesses after being read over to him. It may then be read at any hearing of the suit. This rule provides for de bono case examination of a witness about to leave jurisdiction of the Court. This rule has nothing to do with procedures and principles provided in Rules 1 to 3 of Order 18 as to the right of party to lead evidence at the trial of the suit. In view of plain language of Order 18, Rule 16 CPC, I find no substance in the plea of learned counsel for plaintiff-petitioner that examination can take place only after issues are framed or defendants file their written statements. The plain language of the provision rules out acceptability of the plea. Similar view was expressed by the Patna High Court in Ram Dhir Prasad v. Ram Sewak, AIR 1978 Patna 218. It goes without saying that if contingency so arises, witnesses can be recalled for further and/or initial cross-examination by any new party in case the Court feels that it would be in the interest of justice to do so.
I find no scope to interfere in this revision application which is accordingly dismissed. No costs.