Ramasami Gounder and 3 others vs Muthayammal and another

Defendants 3 to 6 in O.S.No.152 of 1986 on the file of the Sub-Judge, Namakkal are the revision petitioners and the plaintiffs therein are the

respondents herein. That suit is for partition and separate possession. Defendants 3 to 6 filed an application namely, I.A.No. 1165 of 1993 under

Order 18 Rule 3A of the C.P.C. to examine the witnesses to the ""Will"" dated 17.3.82 before the third defendant is examined. That application was

dismissed on merits. Hence the present revision before this court.

I heard Mr. R. Subramanian, learned counsel appearing for the revision petitioners and Mr. K. Kuppusamy learned counsel appearing for the

respondents. According to the learned counsel for the revision petitioners, Order 18, Rule 3A of the C.P.C. do not prescribe any time limit by

which an application should be moved and according to him that application can be filed even after the examination of some of the witnesses on the

side of the party, who moves that application. The fact that the scribe of the ""Will"" had been examined long before even without an order under

Order 18, Rule 3A of the C.P.C. would not disable or disentitle the revision petitioners from having the relief granted to them under the above

quoted Rule. The learned counsel for the revision petitioners for this purpose relies upon a judgment of this court in a case reported is Samidurai

and Others Vs. Kanakayal, . Mr. K. Kuppusamy, learned counsel for the respondents would contend that though the order under challenge

cannot stand in view of the judgment of this court referred to above, yet on facts, the revision petitioners are not entitled to any relief.

In the light of the arguments advanced by the learned counsel on either side, I perused the order under challenge. In the suit for partition, the

third defendant besides raising defence on factual aspects also pleaded a ""Will"" which will disentitle the plaintiffs from getting the relief as prayed

for. It appears that the evidence of the plaintiffs commenced on 5.12.1994. Even before that date, on an application by the defendants in

I.A.No.722 of 93, the scribe of the ""Will"" was examined on the side of the defendant as D.W.1 by an advocate commissioner. The scribe was

examined on 31.7.93. Thereafter additional written statement came to be filed on 10.9.1993 and on that day itself the application, out of which the

present revision has arisen, was filed. The evidence of the plaintiffs was opened and commenced to be recorded from 5.12.1994. Order 18, Rule

16 of the C.P.C. enables the court to take the evidence of any witness, if the said witness was about to leave the jurisdiction of the court or other

sufficient cause is shown to the satisfaction of the court as to why his evidence should not be taken immediately. As already noticed by me earlier,

the material papers placed before this court would show that the scribe of the ""Will"" came to be examined even before the commencement of the

examination of the witnesses by either party to the suit, on the ground that he was sick.

A learned single Judge of this Court in a judgment reported in N. Mohamed Hussain Sahib Vs. The Chartered Bank, Madras and Another, ,

has held as follows:

Order 18. of the C.P.C. provides for the hearing of the suit and examination of witnesses. Under Order 18, Rule 16 C.P.C., 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 the manlier provided in that order. Thus examination of a witness De Bene Esse or on commission cannot affect the question of right to

begin the case.

Rule 3A of Order 18 of the C.P.C. was brought in by the amending Act 104 of 1976. Since it is found in Order 18, I am of the opinion that Rule

3A of Order 18 also has role to play in deciding the right of the respective parties to begin the case. Inasmuch as the learned single Judge of this

court in the judgment referred to supra had held that the examination of a witness under Order 18, Rule 16 of the C.P.C. De Bene Esse or on

commission cannot affect the question of right to begin the case. I am of the opinion that the rights given to the parties under Order 18 Rule 3A of

the C.P.C. is left intact despite a witness having come to be examined long before the commencement of the evidence on either side of the parties

to the suit. Order 18, Rule 16 of the C.P.C. provides for examination of witnesses at the instance of any party at any time after the institution of the

suit, which means even before the stage of examination of the witnesses commence in the usual course, as provided for under Order 18, Rule 1 to

3A of the C.P.C. Under these circumstances. I am of the opinion that the examination of the scribe in this case as stated earlier in this order cannot

in any way come in the way of the defendants in getting the relief as prayed for by them in the application filed under Order 18, Rule 3A of the

C.P.C.

Even otherwise the learned trial Judge had dismissed the said application solely on the ground that before examining the scribe of the ""Will"" as

D.W.1, no prior permission was obtained under Order 18, Rule 3A of the C.P.C. In other words, according to the learned trial Judge, if party to a

suit wants to examine himself at a later stage and he wants to examine a witness ahead of him, then he must obtain prior permission under Order 18

Rule, 3A of the C.P.C. to commence examination of his witness ahead of him. This approach of the learned trial judge is also not in accordance

with the judgment of this court in the case reported in Samidurai and Others Vs. Kanakayal, . In that case the learned single Judge, after referring

to all the earlier judgments, has held that only for examination of a party as a witness at a later stage, the permission as prayed for under Order 18,

Rule 3A is warranted. Therefore even on that ground, the order under challenge is liable to be set aside.

Under these circumstances. I am of the opinion that the learned trial Judge had erred both in law and on facts in dismissing I.A.No.1165 of

1993. Accordingly the order and decretal order dated 9.11.93 in that I.A. is set aside and consequently the said application will stand allowed as

prayed for. No costs. Since the suit is of the year 1986, the learned Sub-Judge, Namakkal is directed to dispose of the said suit in any event not

later than 31.7.99 and send a report about the same to this Court. The learned trial Judge is directed to act on the production of the copy of the

order in this revision by either of the parties concerned, without in any way waiting for the official communication of the same through the Registry

of this Court. Consequently the C.M.P. is closed.