B RAJESWARI Vs. B VINAYAGAM

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed against the order dated 02.12.2008 in I.A.No,544 of 2008 in O.S.No,281 of 2006 on the file of the Principal Sub Judge, Chengalpattu.

(2.) THE petitioners herein are defendants 1 and 2. THE first respondent herein is the plaintiff and the respondents 2 and 3 are the defendants 3 and 4 in the suit. THE first respondent/plaintiff filed a suit before the Principal Sub Judge, Chengalpattu in O.S.No,281 of 2006 seeking following prayers:-"a) To direct the defendants 1 and 2 to execute the sale deed and register the same in respect of the schedule mentioned properties in favour of the plaintiff on receipt of the balance of sale consideration of Rs.2,15,000/- and if the defendants 1 and 2 failed to do so the same, the Court may execute the sale deed and register the same on behalf of the defendants 1 and 2 in favour of plaintiffb) To direct the defendants 1 and 2 to pay the cost of the suit. "THE petitioners / defendants 1 and 2 filed the written statement denying all the averments made in the plaint and submitted that the suit is devoid of merits and the same has to be dismissed. THE first respondent/plaintiff has filed I.A.No,544 of 2008 in O.S.No,281 of 2006 under Section 30(b) and Order 16 Rules 7 and 14 and Section 151 CPC seeking to issue witness summons to Balaraman, Son of Manickkam Pillai to tender evidence about the suit sale agreement dated 08.08.2006. THE petitioners herein / defendants 1 and 2 filed counter opposing the application and stated that the 3rd defendant cannot be permitted to appear as plaintiff-s side witness, since defendants 3 and 4 were already set exparte and he cannot be permitted to tender evidence in the suit. After considering the submissions made by both the parties, the trial court allowed the said application granting the prayer sought for. Aggrieved against that order, the petitioners/defendants 1 and 2 have filed the present Civil Revision Petition.

(3.) HEARD the counsel on both sides. The suit is for specific performance. The 1st respondent/plaintiff filed the suit on the basis of the sale agreement dated 08.08.2006 executed by Defendants 1 to 4 in favour of the plaintiff / first respondent herein. In the sale agreement all the defendants are the signatories. The respondents 2 & 3 herein, who are the defendants 3 and 4 in the suit, did not contest the suit and hence they were set exparte. The petitioners herein, who are defendants 1 & 2 in the suit, filed the written statement denying the execution of sale agreement and further disputed that the first respondent/ plaintiff has already got examined himself as witness and another witness was also examined and for the purpose of proving the execution of sale agreement it is necessary to examine the third respondent. After taking into consideration of all facts and circumstances of the case, the Trial Court came to the conclusion that the third respondent is not a opposite party and therefore the first respondent/plaintiff is entitled to call the other party to give evidence and held as follows:-4. The submission made on the respondent side are unsustainable, in the suit contesting defendants are one first and second defendants. Even according to respondents, the third and fourth defendants colluded with plaintiff and brought the suit. Admittedly there is no contra interest between the plaintiffs and third defendant in fact third defendant is not opposite party in the suit, he arrayed only as proper party for adjudication. Even according to the respondents the interest of the petitioner and defendants 3 and 4 are common. So if there are very good reasons the permission to be granted, enabling the parties to prove their case instead of shut the doors. In the petition is allowed the contesting defendants 1 and 2 have every right to cross examined the witness. No prejudice will be caused. 5. On the respondent side stated that examining opposite party on the petitioner side is not permissible in law. The said contention is not acceptable through Madras High Court held in N.Prabhu Roy Vs. R.Sudharsanam 2007 (2) MLJ 1130. There is no total bar on the right of a party to call the other party to give evidence as a witness. If there would have been such a bar order-16 Rule 21 of C.P.C. Would not find plea.