ARUMUGAM PILLAI Vs. PATHIRAKALI AMMAL

JUDGEMENT

(1.) THE revision petitioner, who is the plaintiff in O.S.No.42 of 2000 on the file of Principal District Munsif Court, Tuticorin, has filed the revision petition aggrieved against the orders passed in I.A.No.880 of 2001 dated 16.07.2001.

(2.) THE case in brief is as follows:- THE defendants in the suit filed a petition under Order 18 Rule 3-A and Section 151 of Civil Procedure Code to condone the non-examination of the 1st defendant ahead of D.W.1 and to permit her to be examined as D.W.2 in the case. THE 1st defendant is the Headmistress of the School mentioned in the schedule for 37 years. O.S.42 of 2000 was filed by the plaintiff for declaration that he is entitled to management of the School for the year 2000 and also for injunction. In fact, the 1st defendant filed a suit O.S.No.329 of 2000 for damages on account of the fact that she was kept out of the management. THEre was joint trial of both the suits and the plaintiff in O.S.No.42 of 2000 was examined as P.W.1. THE suit was posted for examination of the defendants to 28.06.2001. THE 1st defendant as a Headmistress had to be present in the School at 11.00 am and as to avoid the protraction of the proceedings, the 2nd defendant, husband was examined as D.W.1. He had given evidence only in respect of the earlier proceedings in O.S.No.96 of 1972 the evidence necessary to explain the circumstances in which the final decree came to be passed. He has not deposed anything in respect of O.S.329 of 2000 filed by the 1st defendant for damages. It is purely an inadvertent omission and it has to be condoned and she should be examined as D.W.2. She has to speak only to damages and the purpose is not to fill up any lacuna in the evidence of D.W.1. THE plaintiff is also not going to be affected by the examination of the 1st defendant in the case and hence the petition. THE plaintiff revision petitioner opposed the application and contended that Under Order 18 Rule 3-A, prior permission has to be obtained by the party before examining any other witness. When this ruling is not followed, the petition filed by the 1st defendant ought to have been rejected. If the party was allowed to be examined at a later stage after examination of the witnesses, it will lead to filling up of lacuna and gap in the evidence of the witnesses. D.W.1, the husband of the 1st defendant had been authorised and he was examined. Since the 1st defendant has not obtained any prevision permission of the Court, the present application is liable to be dismissed. THE learned District Munsif after hearing the parties, allowed the application and aggrieved against this, the plaintiff has come forward with the present revision petition.

(3.) THE learned counsel for the revision petitioner relied on the decision reported in N.C.Kaladharan v. Kamaleswaran, AIR 2000 Ker. 354 that seeking postponement of his evidence before examination of attester of Will on ground that if will is properly proved, he can lead evidence. Such ground is not sufficient for reversing normal order of examining parties, since will can always be marked subject to formal proof and it cannot be said that unless and until will is proved, party will not be able to refer to contents of will in his evidence.