ANUSUYA Vs. ROSELIN MARY

JUDGEMENT

(1.) THE revision petitioners are the plaintiffs in the original suit O.S.No. 171 of 2007 pending before the trial court, namely the Court of District Munsif, Maduranthagam. The respondent herein is the defendant in the said suit.

(2.) THE suit was filed by the revision petitioners represented by their General Power Agent L. Ramachandran. The suit is being contested by the respondent/ defendant and the same is in the part heard stage. On the side of the plaintiffs, the Power Agent figured as the first witness and two more witnesses were examined as PWs.2 and 3. Thereafter, the first plaintiff came forward to examine herself as PW4 and submitted proof affidavit to be accepted as her evidence in chief. At that point of time, the respondent herein/defendant resisted the same and contended that the party (first plaintiff) could not be examined as a witness, since no prior permission was obtained before the examination of the non -party witnesses, as contemplated under Order 18 Rule 3A of CPC. In addition to the resistance made to it, the respondent/defendant filed an application in I.A.No. 2297/2010 for scrapping of the proof affidavit of PW4, which had been accepted as her evidence in chief examination.

(3.) THE arguments advanced on the side of the revision petitioner is mainly based on the judgment of a Division Bench of this Court sitting at Madurai Bench (I was part of the Bench) in Ravi & Another v. Kumar reported in, 2008 -I -L.W.1055, wherein it was held that the provision found in Order 18 Rule 3A of CPC was only directory and not mandatory that the permission to examine non -party witnesses when a party wants to examine the party witness at a later point of time is obtained before the examination of the non -party witnesses and that such a permission can be sought for even subsequently and the court can grant such permission, provided it is satisfied with the reasons assigned for the non -examination of the party witnesses earlier. For better appreciation Order 18 Rule 3A of CPC is extracted below: