M.R. Hariharan Nair, J.

Can the propounder of a will, who is a defendant, insist that he should be examined as a party only after his witnesses including the Sub Registrar and the Attestors are examined? This is the question that arises for decision in this revision.

2. In a suit for partition the revision petitioner, who is the 5th defendant raised a contention that one of the items in the plaint schedule is not partible for the reason that it is covered by a will executed by the mother of the parties in the year 1982. Pursuant to the replication denying the validity of the will the Court decided that the defendants should open the evidence in the case. The 1st defendant then filed LA. No. 330/95 praying that the District Registrar, Trivandrum be directed to produce before the Court the original will dated 30.8.1982 along with the envelope concerned and all other connected records. That was disallowed stating that the 1st defendant and his counsel could peruse the documents in the presence of the District Registrar, Trivandrum, get attested copies thereof for production and that the production of original could be considered at the trial stage. He subsequently filed LA. No. 5830/98 praying that he might be allowed to adduce counter evidence regarding the will after completing the evidence of the 5th defendant. The Court ordered on the petition "kept in abeyance for decision after the evidence of the plaintiff. It was, thereafter, that the petitioner filed LA. No. 4860/99 praying that he be allowed to examine the District Registrar, Scribe and the Attestors of the Will at the 1st instance and that his own examination be postponed until the said witnesses are examined.

3. It, was argued before the trial court that only when the will is proved there is scope for adducing evidence of the parties. The Court, however, did not find merit in the contention. It was observed that the proof of the will has nothing to with examination of the party and that the burden of proof in the case is on the propounder and that he has to open the case. The petition, it was observed, was filed with ulterior motives. The petition was hence dismissed.

4. I have heard both sides.

5. 0.18 R.3(A) of the Code of Civil Procedure provides as follows:

"Party to appear before witnesses:- Where a party himself wishes to appear as a witness, he shall also appear before any other witness on his behalf has been examined, unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage."

A plain reading of the Section makes it clear that if the party himself wishes to appear as a witness he has to do so before any other witness on his behalf is examined. This is however, subject to the power of the Court, for reasons to be recorded, to permit him to appear as witness at a later stage. A discretion is certainly available with the Court to allow the request to postpone the evidence of the party until his witnesses are examined; but this is subject to the availability of sufficient reasons for doing so which have to be recorded. The permission cannot be granted for the mere asking or as a matter of course and the Court has to justify its action by giving sufficient reasons. Then the question is whether the need for formal proof of a will can be a sufficient ground for postponing examination of witnesses.

6. The discretion available with the Court in the matter is not unbridled. It is a judicial discretion. Valid and compelling reasons must be made out for postponing the examination of parties until the witnesses are examined. What exactly prevents the party from going to the box first is a matter to be established by him and only when there is justifiable inability on the part of the party to get himself examined first, the question of postponing his examination will arise.

7. One of the material questions that the Court has to address in the matter is whether postponement of the examination is sought with ulterior motives an