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2018 DIGILAW 3048 (MAD)

MUTHULINGAM v. RAMALINGAM

2018-09-18

P.T.ASHA

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JUDGMENT P.T. Asha, J. This Civil Revision Petition involves a very short issue whether in a suit, the plaintiff could be examined at a later point of time after the witnesses are examined and if such a course is adopted whether the permission has to be obtained under the provisions of Order XVIII Rule 3A of C.P.C. at the very beginning of the evidence or is it to be obtained just prior to the plaintiff being examined in evidence. 2. The brief facts of the case are as follows : (a) The plaintiff has filed a suit for declaration and permanent injunction in O.S.No.244 of 2006 on the file of the I Additional District Munsif, Ulundurpet. When the matter was posted for trial, his son came forward to adduce evidence as P.W.1 for which purpose the proof affidavit in chief was filed on 14.12.2010. (b) The learned I Additional District Munsif, Ulundurpet had returned the said application with the following endorsement : "Perused the records. To be filed along with permission petition from the plaintiff. Hence this proof affidavit returned. Time 15 days. Call on 15.02.2011." Aggrieved by this order, revision petitioner is before this Court. 3. Before proceeding to deal with the case, it is necessary to extract the provisions of Order XVIII Rule 3-A of C.P.C. Order XVIII Rule 3-A of C.P.C reads as follows : "3-A. 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." 4. A reading of the above provision indicates that where the normal procedure of the party examining himself before the other witnesses is deviated by the party be it the defendant or the plaintiff, then they can do so only after obtaining permission of the trial Court. The point in issue here is whether such a permission has to be obtained at the commencement of the evidence on the side of the plaintiff/defendant or whether the other witnesses could be examined first and the application moved only at the time when the party examined. This issue has been settled by the pronouncement of Division Bench of this Court in Ravi and another Vs. Ramar, (2008) 1 CTC 36 . This issue has been settled by the pronouncement of Division Bench of this Court in Ravi and another Vs. Ramar, (2008) 1 CTC 36 . The Division Bench of this Court after elaborating on the conflicting judgment of this Court as well as the decisions of other Courts has finally held as follows : "The real test is to find out whether there was a genuine cause for which the party was not examined as a first witness. If for some genuine reasons, which could not be foreseen initially, a party wants to examine himself at a later stage, permission can be granted. Therefore, the overriding consideration is not whether the party makes the Application at the threshold or at the subsequent stage, but whether for a genuine and germane reason the party is required to be examined at a later stage notwithstanding the fact that he was not examined as a witness at the beginning. This seems to be the essence of the different decisions of different High Courts." Therefore, the Division Bench of this Court has held that the Application under Order XVIII Rule 3-A of C.P.C can also be moved, when the party wants to examine himself after the examination of other witnesses. The very purpose of the Application is to ensure that the party is not seeking to fill up the lacuna and he had genuine and sufficient reasons preventing him from entering the box at the first instance. In the light of the above judgment, the order of the learned I Additional District Munsif, Ulundurpet is totally erroneous and therefore, is liable to be set aside. 5. The learned I Additional District Munsif, Ulundurpet, is directed to take the proof affidavit on file and proceed with the trial and in case, the plaintiff seeks to examine himself at the later point of time, then the same can be permitted only if the plaintiff files an Application under Order XVIII Rule 3-A of C.P.C and the Court shall pass an order giving reasons thereof either accepting or rejecting the permission. 6. In the result, this Civil Revision Petition is allowed on the above lines and the order dated 28.01.2011 returning the Chief Affidavit filed by P.W.1 in O.S.No.244 of 2006 passed by the learned I Additional District Munsif, Ulundurpet is set aside. However, there shall be no order as to costs. 6. In the result, this Civil Revision Petition is allowed on the above lines and the order dated 28.01.2011 returning the Chief Affidavit filed by P.W.1 in O.S.No.244 of 2006 passed by the learned I Additional District Munsif, Ulundurpet is set aside. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed. 7. Original Proof Affidavit is now been handed over to the counsel for the petitioner to file it before the trial Court.