Permissibility of appearance of party to suit as witness.

M.N. Chandurkar, C.J.

1. This revision petition filed by the original defendants arises out of an order made by the IV Assistant City Civil Judge, Madras, in an application I.A. No. 7203 of 1986 in O.S. No. 1692 of 1984, holding that having regard to the provisions of Order 18, Rule 3-A of the Code of Civil Procedure, second defendant cannot be examined as a witness at the stage at which the trial of the suit was at the moment.

2. The respondent, petitioner in I.A. No. 7203 of 1986, is the plaintiff, has filed a suit for declaration that he is entitled to the suit property as a life-estate-holder pursuant to the settlement deed dated 1.12.1967 executed by his late father Kistappa Chettiar. He has also sought a decree for possession of the suit property. The basis of the claim for declaration and possession is that on 1.12.1967 the deceased Kistappa Chettiar had executed a settlement deed in favour of the plaintiff in respect of the suit property and that after his death, the property passed on the plaintiffs heirs. This document, according to the plaintiff, was given effect to and has been acted upon. The plaintiff has also averred that on the sameday, that is, on 1.12.1967, the late Kistappa Chettiar had settled another property, namely, No. 66, Sattana Maicken Street, Choolai, Madras, in favour of the first defendant.

3. Out of the seven defendants to the suit the first defendant is the father of defendants 2 to 4, defendants 5 to 7 are, according to the plaintiff in occupation of the part of the premises as tenants.

4. Defendants 1 to 4, that is, father and three sons, have filed a common written statement. They have taken the plea that the alleged settlement deed dated 1.12.1967 executed in favour of the plaintiff was revoked later on by a deed of settlement dated 17.7.1977 and after this revocation the father of the plaintiff has executed another settlement deed on 31.10.1977 in favour of defendants 2 to 4 by which the suit property was given absolutely to defendants 2 to 4. Therefore, defendants 1 to 4 denied the claim of the plaintiff. They put forward the case that the plaintiff, who had no vestige of right or title to the property in question has been permitted to occupy a portion, but he was now trying to grab the entire property. It may be mentioned that the first defendant had earlier filed a suit for ejectment of the plaintiff, but that suit was dismissed and according to defendants 1 to 4, it was dismissed because the plaintiff contested the suit on the ground of title. The written statement has been verified by all the four defendants stating that the contents of the written statement are true to their knowledge and belief.

5. The suit was filed as far back as in January, 1984. It was taken up for trial. The plaintiff examined himself as P.W. 1 and he closed his case. Defendant No. 1 was examined as D.W. 1 and was cross-examined. After the examination of the first defendant was over, a third party by name Chokkayya was examined as D.W. 2. This witness is alleged to have attested the document of settlement said to have been executed by the late Kistappa Chettiar on 31.1.0.1977. It appears that, after the evidence of Chokkayya was over, there were several adjournments. On one day, when the matter was again taken up, it was stated on behalf of the defendants that they proposed to examine defendant No. 2 as a witness. When this was mentioned, the plaintiff filed an objection to such a course being permitted in the form of an affidavit. In the affidavit the plaintiff stated that the defence of the defendants is common, they are represented by the same counsel and the defendants are now making an attempt to fill up the lacuna and the gaps which may have been left in the case after the attesting witness was examined by examining defendant No. 2. The contention of the plaintiff was that all the advantages which he had secured by getting certain answers in cross-examination of D.Ws. 1 and 2 would be lost if the second de