EXECUTIVE OFFICER PALLAPALAYAM TOWN PANCHAYAT Vs. PRABHAKARAN

JUDGEMENT

(1.) This Civil Revision Petition is filed against the decreetal and fair order dated 21.09.2011 made in I.A. No. 1042 of 2011 in O.S. No. 138 of 2008 passed by the District Munsif, Palladam in dismissing the application duly taken out under Order XVIII Rule 3A and Section 151 CPC to condone the delay in examination of the petitioner and for recording of evidence. The petitioner is the 3rd defendant and respondents 1 and 2 are defendants 1 and 2 before the Trial Court. The 3rd respondent herein is the plaintiff. He filed a suit in O.S. No. 138 of 2008 for permanent injunction. During the course of proceedings, the petitioner herein, who is the 3rd defendant in the suit filed an application in I.A. No. 1042 of 2011 under Order XVIII Rule 3A and Section 151 of C.P.C. to condone the delay in examination of the petitioner/3rd defendant and record his evidence. The said Application was resisted by the 3rd respondent/plaintiff by filing a counter.

(2.) Upon perusal of documents and hearing the arguments of the learned counsel on either side, the Trial Court observed that the petitioner/3rd defendant wishes to examine himself after examining a witness on his side and that the respondents resisted it on the ground that the petitioner ought to have obtained permission from the Trial Court already. It has further observed that the petitioner ought to have obtained permission even before he had examined a third party witness and without getting permission from the Court already, he had examined a third party witness and thereby the petitioner has automatically closed the chance of examining himself as a witness. Taking note of the said observations and in view of the relevant provisions, the Trial Court dismissed the said Application.

(3.) Mr. D. Ashok Kumar, learned counsel for the petitioner would contend that the Court below failed to see that the application had been taken by the petitioner in his capacity as a 3rd defendant and as the trial had not been concluded, there is no impediment whatsoever in allowing the application and extending an opportunity of hearing to the petitioner to substantiate his case. It is his further contention that it is always open to a litigant either as a plaintiff or as a defendant to file any number of recall petitions and reopen petitions for the purpose of his examination and in such circumstances, the dismissal of the application is erroneous.