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2013 DIGILAW 681 (MAD)

Joseph Athma Pillai v. R. Govindarajan

2013-01-31

G.RAJASURIA

body2013
Judgment 1. A resume of facts absolutely necessary for the disposal of this Civil Revision Petition would run thus: The learned counsel for the revision petitioner, echoed the heart-burns of his client to the effect that the original defendant No.3, viz. Joseph Athma Pillai, who is the revision petitioner herein, filed an application for examining the erstwhile first defendant-Savithiri Ammal, who happened to be the vendor of Joseph Athma Pillai, relating to the suit property, at the first instance and thereafter examine himself as the next witness, in order to highlight the natural course of events involved in this case; however, the Lower Court, on the objections of the plaintiff, simply dismissed it warranting interference in revision. 2. The learned counsel for the first respondent / plaintiff would pyramid his arguments which could succinctly and precisely be set out thus: The defendant No.3 is trying to fill up the lacuna by examining first the said Savithiri Ammal. Even though the said Savithiri Ammal and Rajeswari were arrayed as D1 and D2, Joseph Athma Pillai as D3 and Govindaraj as D4, yet during the pendency of the suit, after the filing of the written statement by D1-Savithiri Ammal, at the instance of the plaintiff, D1 and D2 were deleted from the party array. Subsequently, the matter was posted for trial and the plaintiff's side was closed. When the matter was posted for defendants' side for adducing evidence, defendant No.3 came forward with such dubious averment seeking such untenable permission for examining the said Savithiri Ammal at the first instance and thereafter examining himself as the next witness. As per the decision of this Court in Ravi and another v. Ramar, reported in 2008 (1) CTC 36 , such a course is totally untenable. Accordingly, the learned counsel would pray for dismissal of the Civil Revision Petition. 3. The point for consideration is as to whether in the factual matrix, D3 could be permitted to examine on his side, firstly his vendor Savithiri Ammal and thereafter himself (D3)? 4. The trite proposition of law is that normally a party to the proceeding shall examine himself first and thereafter in order to buttress and fortify his case, he can examine witnesses. 4. The trite proposition of law is that normally a party to the proceeding shall examine himself first and thereafter in order to buttress and fortify his case, he can examine witnesses. However, this is a singularly singular case wherein earlier as has been observed by me supra, Savithiri Ammal was arrayed as D1 and she also filed the written statement and thereafter, for reasons best known to the plaintiff, he sought for deleting from the party array the D1 as well as the D2. It is the stand of the plaintiff that he happened to be the cultivating tenant in the suit property, under Savithiri Ammal, and thereafter from Savithiri Ammal, Joseph Athma Pillai (D3) purchased the property. Hence it is quite obvious that the said Joseph Athma Pillai could not have any personal knowledge about the said factum of alleged tenancy emerged between the plaintiff and Savithiri Ammal. In such a case, examining the erstwhile D1-Savithiri Ammal as D.W.1 and thereafter examining D3, would not in any way antithetical to the well established principles governing the conduct of trial. If in an hypothetical case, the defendant is having personal knowledge of a fact then he should be the witness at the first instance. But here, as per the natural course of events, D3-Joseph Athma Pillai, purchased the property from D1 and in order to speak about the alleged tenancy emerged between the plaintiff and Savithiri Ammal in respect of the suit property, there is no harm in examining her at the first instance and thereafter examining D3. The Lower Court without ascertaining the case in the proper perspective, simply dismissed it warranting interference in revision. 5. Therefore, the impugned order of the Lower Court is set aside granting permission to the revision petitioner to examine himself as a witness after examining the said Savithiri Ammal. In response to the extempore submission made by the counsel for the first respondent / plaintiff, I would like to observe that both the witnesses might be examined on the same day. The learned counsel for the revision petitioner would submit that the said Savithiri Ammal is aged 92 years old and she might be got examined on commission. Be that as it may, all endeavour shall be made to see that Savithiri Ammal and Joseph Athma Pillai are examined on one and the same day. The learned counsel for the revision petitioner would submit that the said Savithiri Ammal is aged 92 years old and she might be got examined on commission. Be that as it may, all endeavour shall be made to see that Savithiri Ammal and Joseph Athma Pillai are examined on one and the same day. However, permission is granted for examining Savithiri Ammal as a first witness and Joseph Athma Pillai as the next witness. 6. The Civil Revision Petition is disposed of with the above observations. Consequently, the connected miscellaneous petition is closed. No costs.