Examination of defendant not to fill up the lacuna,

1. The revision petitioner, who is the plaintiff in O.S.No.42 of 2000 on the file of Principal District Munsif Court, Tuticorin, has filed the revision petition aggrieved against the orders passed in I.A.No.880 of 2001 dated 16.07.2001.

2. The case in brief is as follows:- The defendants in the suit filed a petition under Order 18 Rule 3-A and Section 151 of Civil Procedure Code to condone the non-examination of the 1st defendant ahead of D.W.1 and to permit her to be examined as D.W.2 in the case. The 1st defendant is the Headmistress of the School mentioned in the schedule for 37 years. O.S.42 of 2000 was filed by the plaintiff for declaration that he is entitled to management of the School for the year 2000 and also for injunction. In fact, the 1st defendant filed a suit O.S.No.329 of 2000 for damages on account of the fact that she was kept out of the management. There was joint trial of both the suits and the plaintiff in O.S.No.42 of 2000 was examined as P.W.1. The suit was posted for examination of the defendants to 28.06.2001. The 1st defendant as a Headmistress had to be present in the School at 11.00 am andas to avoid the protraction of the proceedings, the 2nd defendant, husband was examined as D.W.1. He had given evidence only in respect of the earlier proceedings in O.S.No.96

of 1972 the evidence necessary to explain the circumstances in which the final decree came to be passed. He has not deposed anything in respect of O.S.329 of 2000 filed by the 1st defendant for damages. It is purely an inadvertent omission and it has to be condoned and she should be examined as D.W.2. She has to speak only to damages and the purpose is not to fill up any lacuna in the evidence of D.W.1. The plaintiff is also not going to be affected by the examination of the 1st defendant in the case and hence the petition. The plaintiff revision petitioner opposed the application and contended that Under Order 18 Rule 3A, prior permission has to be obtained by the party before examining any other witness. When this ruling is not followed, the petition filed by the 1st defendant ought to have been rejected. If the party was allowed to be examined at a later stage after examination of the witnesses, it will lead to filling up of lacuna and gap in the evidence of the witnesses. D.W.1, the husband of the 1st defendant had been authorised and he was examined. Since the 1st defendant has not obtained any prevision permission of the Court, the present application is liable to be dismissed. The learned District Munsif after hearing the parties, allowed the application and aggrieved against this, the plaintiff has come forward with the present revision petition.

3. Heard the learned counsel for the parties.

4. The points that arise for consideration are

(1) Whether the order passed by the court below is proper and correct ?

(2) Whether the evidence of the 1st defendant /1st respondent can be recorded after the conclusion of D.W. 1 in the case ?

(3) To what relief?

5. Points: It is admitted that the revision petitioner/ plaintiff filed O.S.No.42 of 2000 against these respondents/defendants claiming the relief of declaration that the plaintiff is entitled to management of School from 01.01.2000 to 31.12.2000 in the place of the 1st defendant and for consequential permanent injunction. The suit was hotly contested by the defendants. It is also admitted that the 1st defendant in that suit filed O.S.No.329 of 2000 claiming damages from the plaintiff herein. By consent, joint trial was taken and it appears that the evidence recorded in O.S.42 of 2000 was treated as evidence in O.S.329 of 2000 also. The plaintiff in O.S.42 of 2000 was examined as P.W.1 and after closure of the evidence, it appears that the husband of the 1st defendant was examined as D.W.1 in the case and thereafter, on the next day the 1st defendant filed I.A.No.880 of 20001 under Order 18 Rule 3-A and section 151 of Civil Procedure Code to condone her non examination ahead