SAMIDURAI Vs. KANAKAYAL

JUDGEMENT

(1.) THE defendants in O.S. No.275 of 1993 have filed the above revision petition against the order of the District Munsif, Jayankondam in I.A. No.196 of 1995. THE said application was filed by the respondent herein who is the first plaintiff in the suit, seeking permission to examine herself as a witness after the second plaintiff and one other independent witness had been examined. THE petitioners herein opposed the claim of the respondent herein on the ground that the respondent herein cannot be permitted to be examined as a witness after other witnesses had been examined. If the respondent wants to examine herself as a witness, she ought to have got the permission of the court prior to the examination of other witnesses. Since the respondent did not reserve any right to examine herself as a witness by obtaining permission before even the other independent witnesses were examined, the court has no jurisdiction to grant permission to the permission to the respondent to examine herself as a witness. However, the lower court has considered the recent two judgments of this Court and agreed with the view expressed in one judgment reported in Karuppuswamy v. Gnana Soundari (1986)2 M.L.J. 456 and found that the provision under O.18, Rule 3-A C.P.C. is only in the form of directory and as such it is not necessary for the party to seek the permission before even the other witnesses are to be examined. On this ground, the application was allowed. Aggrieved by the same, the present revision has been filed by the petitioners.

(2.) THE counsel for the petitioners contended that the provision under 0.18, Rule 3-A, C.P.C. is mandatory and as such the respondent ought to have reserved her right by obtaining prior permission be+ fore ever the other witnesses are examined, failing which it is not open to the respondent to seek permission at a later point of time. THE court does not clothe with such power.

(3.) TO appreciate the arguments of both the counsel, it is worthwhile to refer some of the judgments of our High Court as well as the other High Courts. Sathiadev, J. (as he then was) had dealt with the matter in the case reported in Marappa Gounder v. Sellappa Gounder, A.I.R. 1985 Mad.183 wherein the learned Judge has held that there is no total ban against the parties being examined after their witnesses are put into the witness box. The only requirement is that they can be examined with the prior permission of the court and a duty is cast on the court to record reasons. This is clear from the following passage: