P.R. Gopalan vs Arumugam

K. Ravichandrabaabu, J.—These two civil revision petitions are filed by one and the same petitioner, who is the plaintiff in O.S. No. 47 of 2010. C.R.P. (PD) No. 1247 of 2011 is filed against I.A. No. 1851 of 2010 in O.S. No. 47 of 2010 on the file of the District Munsif Court, Palladam wherein the respondents herein as the defendants 1 and 2 therein sought for permission of the court for the defendants to appear as their own witnesses at a later stage after the examination of other witnesses.

C.R.P. (PD) No. 1248 of 2011 was filed against I.A. No. 1852 of 2010 in O.S. No. 47 of 2010 on the file of the District Munsif Court, Palladam by the respondents herein as the defendants 1 and 2 therein for issuing summons for the attendance of three witnesses viz., Subbathal, Wife of late Thangavel, T. Paramasivam, Son of late Thangavel and T. Venkatachalam, Son of late Thangavel. Both the applications were resisted by the petitioner herein as the plaintiff therein.

The Court below after hearing the parties and considering the rival submissions and pleadings, allowed both the petitions by a common order dated 09.12.2010. Aggrieved against the said common order, the above two civil revision petitions were filed before this court.

Though notice was ordered in these civil revision petitions and served on the respondents and they have also engaged a counsel before this Court, none appeared today and also on earlier occasion, when the matter was listed on 07.08.2014. Heard the learned counsel appearing for the petitioner.

I.A. No. 1851 of 2010 was filed by the respondents seeking permission of the court for them to appear as their own witnesses at a later stage after examination of other witnesses. In support of the said application, an affidavit was filed by the respondents wherein it was stated that the main dispute with regard to the suit is about the total extent of S.F. No. 269/1A and S.F. No. 269/1B in the Vadugapalayam village, Palladam in which the plaintiff, plaintiff''s brother''s legal heirs and the defendants are holding lands and under such circumstances, it was just necessary that the plaintiff''s brother''s legal heirs are examined first so as to ascertain the extent of the land in the above said S.F. Nos. 269/1A and 269/1B, which would substantiate the defendants'' case. Therefore, it is stated that the evidence of plaintiff''s brother''s legal heirs is vital for proper adjudication of the case.

Learned counsel for the petitioner submitted that as per Order XVIII, Rule 3A of C.P.C., the party has to appear before other witnesses and only with the permission of the Court, they can appear as a witness at a later stage and the court has to record the reasons for granting such permission. By relying the said procedure under Order XVIII, Rule 3A C.P.C., the learned counsel submitted that the defendants have not given any sufficient reason and the court below has also not recorded any reason for allowing the application. In support of his contention, the learned counsel relied on a decision of the learned single Judge of this Court reported in Nathu Banu Asha Vs. The Lakshmi Vilas Bank Ltd.,

There is no quarrel about the position of law more particularly with regard to the procedure contemplated under Order XVIII Rule 3A C.P.C., which reads as follows:

3A. Party to appear before other witnesses:- 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.

A perusal of the above said provision would show that there is no total prohibition for the party to appear as his own witness at a later stage. On the other hand, the court can permit such a party after recording reasons for granting such permission. I have already pointed out the reasons stated in the affidavit filed in support of I.A. No. 1851 of 2010 for examining the other witnesses first before examining the defendants 1 and 2 as their own witnesses. The court below has also considered the same and observed that on perusal of entire case records, it was made clear that there was some reasonable ground behind the petition and among the six issues framed, the third issue puts burden on the defendants to prove the fact as to whether the defendants own land in S.F. No. 269/1B to the extent of 16 cents. Thus, the court below has observed that in order to discharge their burden, the defendants have filed those petitions and in order to give an opportunity to prove their contention, it has allowed the application.

In my considered view, as the procedure contemplated under Order XVIII Rule 3A of CPC has been fully complied with in this case and therefore, I find no irregularity and infirmity in the order passed in both the applications. In fact, the order passed in I.A. No. 1852 of 2010 is only a consequential order in view of the order made in I.A. No. 1851 of 2010. The learned counsel appearing for the petitioner relied on the decision of this Court made in Nathu Banu Asha Vs. The Lakshmi Vilas Bank Ltd., . The issue involved in that case was as to whether the embargo as contemplated under Order XVIII, Rule 3A C.P.C. could be pressed into service as against the power of attorney and the learned Judge has found that such a person should be taken as equal to that of party himself and without permission of the Court, the said power of attorney should not be allowed to examine at a later stage. In the present case, the facts are totally different and the application filed under Order XVIII Rule 3A C.P.C. was supported by reason and the same was also accepted by the court below. Therefore, I am of the view that the decision relied on by the learned counsel for the petitioner is not helping him in any way in view of the facts and circumstances of the present case. Accordingly, both the civil revision petitions fail and the same are accordingly dismissed. No costs. The connected miscellaneous petitions are also dismissed.