M KUMAR Vs. S SUBBIAH KONE

JUDGEMENT

(1.) SINCE the facts and circumstances of the case are one the same, a common order is being passed. 1.1.The petitioner herein is the defendant in O.S.No.483 of 2006 on the file of the Principal District Munsif Court, Tirunelveli. The first respondent filed the suit for declaration and for mandatory injunction, in which the second respondent is the second defendant. The trial commenced before the Court. The first respondent was represented by his power of attorney by name Meena and she was examined as P.W.1 at the first instance and after her cross-examination, the first respondent filed proof affidavit for his chief examination, for which notice was given to the other side, namely, these petitioners who prayed for time to cross-examine the first respondent as PW2 without making any objections thereto. Thereafter, he filed two applications one, the present application in I.A.No.1210 of 2007 to reject the chief examination produced by the first respondent on the strength of the absence of getting permission by the first respondent under Order 18, Rule 3-A CPC and questioning the non-obtaining permission, he filed another application in I.A.No.1211 of 2007 and hence, the prayer may be accorded to. CRP.No.2142 of 2008:

(2.) IN the affidavit, the petitioner has stated that only after getting prior permission from the Court to examine any other witness prior to examining the party himself and since such permission was not obtained from the Court, the chief examination in the form of proof affidavit filed by the first respondent/plaintiff has to be rejected.

(3.) IN the counter filed by the present petitioner, he has alleged that as per the provisions of CPC, he should have filed application to examine witness before the party, namely, the plaintiff, was examined and in the absence of obtaining such permission, the petition is not maintainable and that in the affidavit the plaintiff has not adduced any reasons for not examining him at the earlier point of time. Hence, the petition has to be dismissed.