MARAPPA GOUNDER Vs. SELLAPPA GOUNDER

JUDGEMENT

(1.) Defendants are petitioners. Respondents who are plaintiffs filed O. S. No. 58 of 1981, on the file of the District Munsif's Court, Bhavani, for a declaration that they are entitled to irrigate their lands through the suit channel, and to restrain defendants from interfering with their right of irrigation, by way of an injunction. Written statement was filed on 10-11-1982, and issues were framed on 2-3-1983. The suit was taken up for trial on 28-6-1983, and adjourned to 14-7-1983, on which date, instead of any of the plaintiffs being examined, one of their vendors was examined as P. W. 1. On 15-7-1983, Exs. A1 to A3 were marked and P. W. 1 was examined on 16th, 18th and 19th of July 1983. On coming to know that plaintiffs were arranging to put one of the plaintiffs in the box for examination, I. A. O. No. 1067 of 1983 was filed under O.XVIII rule 3-A and S.151 C. P. Code, to pass an order prohibiting the examination of any of the plaintiffs in the suit. The trial Court dismissed the application holding that, when the suit was opened on 14-7-1983, counsel for plaintiffs sought oral permission to examine the vendor of the suit property, and that, on 15-7-1983, a joint memo was filed for joint trial of O.S. No. 58 of 1981 with O. S. 1243 of 1981, which was instituted by the sixth defendant, and therefore, the petition was devoid of merits, and hence dismissed it as not maintainable.

(2.) Mr. S. Gopalaratnam, learned counsel for defendants, submits that, when rule 3-A of O.XVIII C.P.C. had been introduced under Amending Act 104 of 1976 to prevent this 'persistent notorious malpractice indulged in by litigants bordering dishonesty', the trial Court had overlooked the intendment behind the rule and had light-heartedly dismissed the application. The claim made that oral permission was sought is also disputed.

(3.) On behalf of the plaintiffs, Mr. N. Sivamani, learned counsel, would first submit that, when a statement is made by court in its order as to what has transpired in the proceedings, thereafter, no party to a proceeding can dispute it, in view of the decision rendered in State of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249. It was held therein that, 'If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject'. He then relies upon the decision in Smt. Gordial Kaur v. Pyara Singh, AIR 1962 P&H 180 but it dealt with only rules 1 and 2 of Order 18 C.P.C. and the undesirable practice which had developed and was in vogue in the State of Punjab, of parties coming into the witness box at the end of their evidence, so as to fill up any blanks or lacunae in the evidence, and hence held as not conducive to better administration of justice. He then relied upon the decision in Bholanath v. Kalipada, AIR 1981 Cal 295, wherein it was held, that rule 3-A is directory, and that after other witnesses are examined, permission can be granted to a party to a proceeding to be examined. In the decision in Kwality Restaurant v. Satindar Khanna AIR 1979 Punj and Har 72 it was held that a party may, perhaps, as a matter of abundant caution, apply at the stage of commencing his evidence, and get the necessary permission, and equally, if sufficient ground is made out, he may secure such permission at a later stage also.