S SRINIVASAN Vs. BALAMBAL

JUDGEMENT

(1.) AGGRIEVED by the order in I.A.No,120 of 1998 in O.S.No.75 of 1996 dated 17.4.1998 on the file of District Munsif, Thiruvarur, the petitioner plaintiff has filed the above revision before this Court.

(2.) THE petitioner-plaintiff by name Srinivasan through power agent has filed the above suit for recovery of plaint B schedule property from the defendants and for permanent injunction against the defendants/respondent; from in any manner interfering with the plaint 'B' schedule property. THE plaint A' Schedule property is the whole property owned by plaintiff of which plaint 'B' schedule is a part. THE suit ' B' schedule property is a lane measuring about 125 sq.ft. in T.S.No.166/1 No.2. Vijayapuram Vattam . It is the plaintiff's case that this suit property was owned and enjoyed by the plaintiff and that the defendants while constructing their house in 1992 trespassed into plaint 'B' Schedule property despite objections and police complaints by the plaintiff and have erected concrete pillars and completely occupied it. THE defendants have built a storeyed building. THEre are eves projecting from the plaintiff's main wall (AB) to a length of about 9 inches for letting out rain water . THE said suit was in itially filed as O.S.No 103 of 1992 before the Sub Court, Nagapattinam and subsequently transferred to District Munsifs Court, Tiruvarur and re-numbered as O.S.No.75 of 1996, It is further stated that since the suit is based on title a power holding he does not know the prior history of title, the plaintiffs father Soundararaja lyengar was examined as P.W.I. THE petitioner has been cited as a witness only. THE plaintiff Srinivasan was not being examined as a witness. After the examination of P.W.1, when the petitioner was about to be examined as P.W.2, the respondents' advocate objected to his examination on the ground that the plaintiff has not obtained prior permission from the court for examination at a later stage i.e, after the examination of P.W.1, It is further stated that his advocate with the object of avoiding technical objections filed I.A.120 of 1998 under Order 18, Rule 3A requesting the Court to permit the petitioners to be examined as P.W.2. THE said petition was objected to by the, respondents on the ground that the plaintiff ought to have obtained permission prior to commencement of trial and not after examination of P.W.1. THE lower court according to the petitioner, on an erroneous interpretation of Order 18, Rule 3A has dismissed the application on 17.4.98, against which the plaintiff has preferred the present Revision. It is further stated that having regard to the provision of Order 18, Rule 3 A, the impugned order passed by the trial court is legally incorrect. It is also stated that inasmuch as the petitioner is only a Power Agent and he cannot be equated with the plaintiff. Moreover, it is stated that the lower court failed to note that his evidence will in no way relate to title about which P.W.1 has given evidence and that his evidence will be restricted to the actual trespass committed by the defendants, the mode and the manner in which it is committed and as to when it was committed. THE provision, namely, Order 18, Rule 3A is only directory and not mandatory and a lot of judicial discretion is vested in the Court to permit such a request.

(3.) NOW I shall consider the decisions cited by the respondents taking contrary view that Order 18, Rule 3-A is a mandatory and without prior permission of the party cannot appear as a witness at later stage. The first decision is in the case of Ayyasmai Gounder v. T.S. Palaisami, AIR 1990 Mad 237. The following conclusion arrived at by the learned judge with reference to Order 18, Rule 3-A is relevant: -