AYYASAMI GOUNDER Vs. T S PALANISAMI

JUDGEMENT

(1.) This Civil Revision Petition at the instance of the plaintiffs in O. B. No.1146 of 1980, District Munsif's Court, Coimbatore, has been preferred against the order passed by the Court below, on an application taken out by the respondent herein, the 2nd defendant in O. S.1146 of 1980, under Order XVIII. R.3-A, Code of Civil Procedure, for permitting the respondent herein to be examined as a witness. In O. S. No.1146 of 1980, the petitioners had prayed for the relief of permanent injunction restraining the respondent and two others from obstructing the user of the suit cart track. In that suit, the witnesses on behalf of the petitioners were examined and the evidence on their side was closed on 12-4-1987. The examination of the witnesses on behalf of the respondent and others was commenced on 17-6-1987 and the examination of the first witness was completed on 17-7-1987. On 28-10-1987, another witness was examined and his examination was also completed on 7-1-1988. A third witness was examined on 5-4-1988 and his examination was also completed on 13-6-1988. It is not in dispute that among the witnesses to be examined, there were witnesses other than the parties to the suit. While matters stood thus, the respondent herein filed I. A. No.1130 of 1988 under Order XVIII, Rule 3-A of the Code praying that he should be permitted to be examined as a witness. In the affidavit filed by the respondent herein in support of that application, it was stated that though he is the second defendant in O. S. No.1146 of 1980 and not a party to another suit. O. S. No.1257 of 1980, and he had not filed any application earlier for his examination at a later stage of the proceedings, he should be permitted to examine himself as the objection raised by the petitioners that he should not be permitted to be so examined, is only purely procedural.

(2.) In the counter affidavit filed on behalf of the petitioners herein, they raised the objection that the respondent should have sought the permission of Court for his examination latar, before the commencement of the examination of the other witnesses and as such permission had not been obtained, it cannot be granted, as that would enable the respondent to violate the salutary provisions of O. XVIII, R. 3-A or the Code. The petitioners also raised the objection that the respondent had been present in Court throughout the examination of the other witnesses and had also instructed counsel and having thus deliberately allowed other witnesses to be examined, the respondent cannot seek the permission of the Court to examine himself at a later stage. Claiming that the provisions of O. XVIII, R. 3-A of the Code are mandatory and should be complied with in letter and spirit, the petitioners prayed for the dismissal of that application.

(3.) The learned District Munsif, who enquired into this application took the view that as the petitioners had not made out that the respondent, in the course of his examination, if permitted to be later examined, is likely to fill up the lacuna in the evidence of the other witnesses, he should be permitted to be examined as a witness, as prayed for by him. It is the correctness of this order that is challenged in this Civil Revision Petition.