R. Nagarajan and N. Manimegalai vs Naveenchander Singh and Others

R.S. Ramanathan, J.—The Defendants 1 to 5 in O.S. No. 317 of 2004 on the file of the Additional District Munsif, Villupuram are the

revision Petitioners.

The suit was filed by the Plaintiffs for declaration that the 7th Plaintiff has got full absolute title over the suit property and for recovery of

possession from the Defendants to the 7th Plaintiff. The case of the Plaintiffs as seen from the plaint is that they have perfected and prescribed their

title by adverse possession and also denied the sale deed alleged to have been executed by the 1st Plaintiff''s mother in favour of one Nagammal

and contended that the 1st Plaintiff''s mother namely Baghirathi Bai had only life estate over the suit property and therefore she could not have

conveyed absolute right over the same and by virtue of family arrangement in the family of Plaintiffs 1 to 6 the property was allotted to the share of

4th Plaintiff from whom the 7th Plaintiff purchased the suit property under a sale deed dated 9.3.1998 and on that basis the suit was filed.

The Defendants namely the revision Petitioners and other Defendants contested the suit and the 1st Plaintiff was examined as PW1 before his

death and 2nd Plaintiff was examined as PW2 and thereafter two witnesses were examined on the side of the Plaintiffs and at that stage, the 7th

Plaintiff filed I.A. No. 167 of 2010 in O.S. No. 317 of 2004 under Order 18 Rule 3A seeking permission of the Court to examine himself as PW5

and that application was objected by the revision Petitioners and rejecting their contention that petition was allowed and aggrieved by the same,

this revision is filed by the revision Petitioners.

The learned Counsel for the revision Petitioners submitted that under Order 18 Rule 3A there is a mandate that without getting prior permission

from the Court the parties should not examine the witnesses before examining himself and once the witnesses were examined without leave of the

Court thereafter, the party cannot examine himself and in this case PW3 and PW4 are not parties to the suit and before examining them no

permission was sought for from the Court to lead evidence by the 7th Plaintiff, to examine himself after the examination of deceased 1st Plaintiff

and 2nd Plaintiff and therefore the lower Court erred in allowing the application.

The learned Counsel for the revision Petitioners relied upon the judgment in the matter of M. Saroja and Ors. v.T. Sundari and Ors. 2009 (4)

MLJ 271 in support of his contention. The learned Counsel for the revision Petitioners also relied upon the observation of the judgment in the

Hon''ble Division Bench of this Court in the matter of Ravi and Anr. v. Ramar 2007 (6) MLJ 1119 wherein the Hon''ble Division Bench of this

Court has held that "" the amendment was introduced with a view to ensure that the party examining himself as a witness at a later stage should not

be permitted to fill-up the lacunae in the evidence adduced from his side. Where the Court comes to a conclusion that the party had deliberately

with-held himself to be examined as a witness at a later stage with a view to fill-up the lacunae in the evidence, obviously permission cannot be

granted to such a party to examine himself at a later stage. This is a relevant consideration where the application is filed, seeking permission to

examine him at a later stage, either at the threshold of examination of other witnesses or subsequently after examination of all or some of the

witnesses. The real test is to find out whether there was a genuine cause for which the party was not examined as a first witness.

He therefore submitted that in this case the specific case of the Plaintiffs is that in a oral partition the property was allotted to the share of 4th

Plaintiff and the 7th Plaintiff purchased the property from the 4th Plaintiff and no attempt was made to examine 4th Plaintiff from whom the 7th

Plaintiff purchased the property and the suit is for declaration that the 7th Plaintiff is the owner of the property and therefore the attempt to examine

the 7th Plaintiff after the examination of PW3 and PW4 who are not parties to the suit is to fill-up the lacunae in the evidence at the later stage

which has been deprecated by the Division Bench and therefore the lower Court ought not to have allowed the application filed by the 7th Plaintiff.

I am not able to accept the contention of the learned Counsel for the revision Petitioners. No doubt in the aforesaid Division Bench judgment the

Hon''ble Division Bench has held that where the Court comes to a conclusion that the party had deliberately with-held himself to be examined as a

witness at a later stage with a view to fill-up the lacunae in the evidence, permission cannot be granted, under Order 18 Rule 3A. In this case it is

admitted that there are eight Plaintiffs and before examining any witnesses the deceased 1st Plaintiff and 2nd Plaintiff were examined as PW1 and

PW2. Thereafter, two witnesses were examined and at that stage the application was filed by the 7th Plaintiff to examine himself. In my opinion, in

a case where the Plaintiffs are more than one and some of them were examined as witnesses on the Plaintiffs'' side and before the examination of

other Plaintiffs some other witnesses were examined, there is no need to apply for permission under Order 18 Rule 3A. The reason is as per Order

18 Rule 3A where a party 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. Therefore, the prohibition under Order 18 Rule 3A

will come into operation when a party examines any witness on his behalf before examining himself and later on he cannot examine himself. It is

made clear that in the above Rule that ""he shall so appear before any other witness on his behalf has been examined"". Therefore, unless the

witnesses were examined on his behalf earlier, then the prohibition under Order 18 Rule 3A will come into operation. In this case it is not

contended by the learned Counsel for the revision Petitioners that the witnesses PW3 and PW4 were examined on behalf of the 7th Plaintiff.

Further, when more than one Plaintiffs are there in the suit the question of getting permission under Order 18 Rule 3A will arise only when any

witness was examined on behalf of a particular Plaintiff and thereafter that Plaintiff wants to examine himself at a later stage. In this case, as stated

supra, there are eight Plaintiffs and after examining 1st Plaintiff and 2nd Plaintiff two witnesses were examined and thereafter 7th Plaintiff wants to

examine himself and in such circumstances, there is no need to apply for permission from the lower Court as the witnesses PW3 and PW4 were

not examined on behalf of the 7th Plaintiff.

Further, the controversy whether 7th Plaintiff will be permitted to examine himself after examination of the witnesses on his side was settled by

the Hon''ble Division Bench of this Court and after considering various Judgments, in the judgment reported in (2007)6 MLJ 1119 (supra) the

Division Bench has held that unless the party had deliberately with-held himself to be examined as a witness at a later stage with a view to fill-up

the lacunae in the evidence, the permission cannot be denied to such a party. Therefore, having regard to the facts of the case, the revision

Petitioners are not able to prove that the 7th Plaintiff deliberately did not examine himself after the examination of PW1 and PW3 and he wants to

let in evidence to fill-up the lacunae and hence the order of the lower Court cannot be interfered with. Further, as stated supra, in case of more

than one Plaintiffs unless it is proved that the witnesses were examined in the first instance on behalf of a particular Plaintiff Order 18 Rule 3A will

not come into operation. Therefore, I do not interfere with the order of the lower Court and it is confirmed.

Hence, the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.