VENKATARAMANA COTTON MILLS Vs. KANNAPIRAN SPINNING MILLS

JUDGEMENT

(1.) Civil Revision Petition is filed against the fair and decretal order dtd. 13/7/2017 made in I.A.No.470 of 2017 in O.S.No.584 of 2011 on the file of I Additional District Court, Coimbatore.

(2.) The petitioner is the plaintiff and the respondents are the defendants in O.S.No.584 of 2011 on the file of I Additional District Court, Coimbatore. The petitioner filed the said suit for recovery of money for the goods supplied to the respondents. The 1st respondent is the partnership firm. The 2nd respondent filed written statement and the same was adopted by the respondents 1 and 3. The trial commenced. The petitioner let in evidence and closed their side. The respondents examined an Accountant as D.W.1 stating that he is aware of the facts and he was cross-examined by the counsel for the petitioner. After cross-examination of D.W.1 by the counsel for the petitioner, the 2nd respondent filed proof affidavit to examine himself as D.W.2. The petitioner filed the present I.A.No.470 of 2017 under Order XVIII Rule 3-A read with Sec. 151 of C.P.C. contending that when a party to the suit wishes to give evidence, he must be examined before any other third party is examined. A party can file an application under Order XVIII Rule 3-A of C.P.C. seeking permission from the Court to examine himself after examining the third party. Unless the Court grants such permission, the party cannot examine himself after examining third party as first witness. Based on these averments, the petitioner filed present I.A.No.470 of 2017 for a direction to hold that evidence of alleged witness Devarajan is not admissible and barred under Order XVIII Rule 3-A of C.P.C.

(3.) The respondents filed counter affidavit and stated that the 1st respondent is a partnership firm and all the amounts due to the petitioner are paid. D.W.1 is Accountant of the 1st respondent firm and hence he is not a third party. The 2nd respondent is a partner of the 1st respondent firm, both D.W.1 and D.W.2 are not different entities and both of them are giving evidence on behalf of the partnership firm and hence, Order XVIII Rule 3-A of C.P.C. is not applicable, the application is not maintainable and prayed for dismissal of the said I.A.