RAMASAMY GOUNDER Vs. MUTHAYAMMAL

JUDGEMENT

(1.) Defendants 3 to 6 in O.S. No. 152 of 1986 on the file of the Sub-Judge, Namakkal are the revision petitioners and the plaintiffs therein are the respondents herein. That suit is for partition and separate possession. Defendants 3 to 6 filed an application namely, I.A. No. 1165/93 under Order 18, Rule 3A of the C.P.C. to examine the witnesses to the "Will" dated 17-3-1982 before the third defendant is examined. That application was dismissed on merits. Hence the present revision before this Court.

(2.) I heard Mr. R. Subramanian, learned counsel appearing for the revision petitioners and Mr. K. Kuppusamy learned counsel appearing for the respondents. According to the learned counsel for the revision petitioners. Order 18, Rule 3A of the C.P.C. do not prescribe any time limit by which an application should be moved and according to him that application can be filed even after the examination of some of the witnesses on the side of the party, who moves that application. The fact that the scribe of the "Will" had been examined long before even without an order under Order 18, Rule 3A of the C.P.C. would not disable or disentitle the revision petitioners from having the relief granted to them under the above quoted Rule. The learned counsel for the revision petitioners for this purpose relies upon a judgment of this Court in a case reported in Samidurai v. Kanakayal, (1996) 2 CTC 429. Mr. K. Kuppusamy, learned counsel for the respondents would contend that though the order under challenge cannot stand in view of the judgment of this Court referred to above, yet on facts, the revision petitioners are not entitled to any relief.

(3.) In the light of the arguments advanced by the learned counsel on either side, I perused the order under challenge. In the suit for partition, the third defendant besides raising defence on factual aspects, also pleaded a "Will" which will disentitle the plaintiffs from getting the relief as prayed for. It appears that the evidence of the plaintiffs commenced on 5-12-1994. Even before that date, on an application by the defendants in I.A. No. 722/93, the scribe of the "Will" was examined on the side of the defendants as D.W. 1 by an advocate commissioner. The scribe was examined on 31-7-1993. Thereafter additional written statement came to be filed on 10-9-1993 and on that day itself the application, out of which the present revision has arisen, was filed. The evidence of the plaintiffs was opened and commenced to be recorded from 5-12-1994. Order 18, Rule 16 of the C.P.C. enables the Court to take the evidence of any witness, if the said witness was about to leave the jurisdiction of the Court or other sufficient cause is shown to the satisfaction of the Court as to why his evidence should not be taken immediately. As already noticed by me earlier, the material papers placed before this Court would show that the scribe of the "Will" came to be examined even before the commencement of the examination of the witnesses by either party to the suit, on the ground that he was sick.