A KARRUPPUSWAMY Vs. GNANA SOUNDARI

JUDGEMENT

(1.) THE plaintiff, who is the revision petitioner herein, has filled a suit for specific performance against the respondent-defendant in respect of immovable properties. THE suit was listed for trial and on 17th july, 1985, the plaintiff examined a witness as P. W. 1 and the trial continued. THE plaintiff did not examine himself as a witness on the date of the hearing. After the evidence of P. W. 1 was over, he filed an application on 31st July, 1985 in I. A. No. 1667 of 1985 requesting the Court to grant him permission to examine himself as P. W. 2. In the affidavit, the plaintiff has stated that on the date of trial, i. e. on 17th July, 1985 one of the attestors to the agreement of sale was not available and that he himself was not well. He further stated that since the Court was not inclined to grant adjournment, he had to examine P. W. 2 in the first instance. Learned District Munsif after hearing both parties, passed an order that as per the provisions of O. 18, R. 3-A the plaintiff had to examine himself as a first witness and, therefore, there is no provision in law to examine the plaintiff as a subsequent witness. Consequently, the petition was dismissed and the plaintiff has come on revision. He has also filed a civil miscellaneous petition and obtained stay of the part heard trial of the suit.

(2.) THE question now before us is of some importance for the trial court and, therefore, it is necessary to cite the case law on the subject in some detail. 0. 18, R. 3-A (as added by the Amendment Act 104 of 1976)reads thus: "where a party himself wishes to appear as a witness, he shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permit him to appear as his own witness at a later stage. " It is clear from the above provision that the Court has got judicial discretion to permit a party to give evidence even after a witness has been examined, but then the court will have to state the reasons for permitting him to appear at a later stage. THE reasons will have to be in writing. In the instant case, the trial court has not given any reasons for rejecting the application, except stating that O. 18, R. 3-A is a bar for examining a party as a witness subsequently. THE lower Court in a short order dismissed the application holding that there is no provision in the Code under which a party, who has failed to examine himself in the first instance can appear as a witness. 1 have already extracted the relevant provisions of the code of Civil Procedure, and it is clear therefrom that the Court has got judicial discretion to allow a witness to be examined at a later stage" provided the Court permits him after giving the reasons. THE trial court wrongly thought that it has no discretion in the matter.

(3.) LEARNED counsel for the respondent pointed out that in this case the plaintiff-purchaser kept himself away from the witness box and put his witness in the first instance. It is also argued plaintiff is only trying to fill up the blanks or lacuna left out in the evidence already given. LEARNED counsel for the respondent also read out from the evidence of P. W. 1, already examined that the - plaintiff was present in court on the date of examination and therefore, he has wantonly avoided the witness box with ulterior motive. But then, the lower court has not considered the merits of this aspect and it has not decided whether this is a fit case for granting such permission or not. As already stated, the lower court wrongly thought that it had no discretion to grant any permission, misreading the provisions of O. 18, r. 3-A, C. P. C.