A party can appear as a witness at a later point of time by obtaining the permission of the Court, even if the evidence on their side is over.

CRP.No. 2269 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 03.01.2023

CORAM:

THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN

CRP.No. 2269 of 2020

and

CMP.No. 14204 of 2020

1.Ramasamy

2.Vijayakumar

.. Petitioners

Versus

1.Baskaran @ Kuppusamy

2. Kavitha

3. Paramasivan

.. Respondents

Civil Revision Petition is filed under Article 227 of the Constitution of

India, praying to set aside the fair and decretal order dated 27.02.2020 in

I.A.No. 03 of 2020 in O.S.No. 109 of 2013 on the file of the Principal District

Munsif Court, Tiruchengode.

For Petitioners

: Mr.R. Tholgappian

For Respondents

: Mr.L. Muthusamy

----

ORDER

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CRP.No. 2269 of 2020

This Civil Revision Petition has been filed to set aside the fair and

decretal order dated 27.02.2020 in I.A.No. 03 of 2020 in O.S.No. 109 of

2013 on the file of the Principal District Munsif Court, Tiruchengode.

2. The revision petitioners herein are the plaintiffs and the respondents

herein are the defendants in the original suit.

3. Heard the learned counsel for the revision petitioners and the learned

counsel for the respondents and perused materials available on records.

4. The case of the petitioners/plaintiffs is that they filed the suit in

O.S.No.109 of 2013 before the District Munsif Court, Tiruchencode, for

declaration, declaring that the plaintiffs are the title holders of the suit

property more fully described hereunder in the Description of Property and

permanent injunction, restraining the defendants from in any manner

interfering with the plaintiffs peaceful possession and enjoyment of the suit

property. The first defendant has contested the suit by way of filing written

statement and denying all the averments made in the plaint. During the

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CRP.No. 2269 of 2020

pendency of the suit proceedings, the petitioners/plaintiffs filed I.A.No.3 of

2020 under Order 18 Rule 3A of CPC., read with Section 151 CPC., and

under Section 135 of the Indian Evidence Act. After perusing the records, the

Court below dismissed the said application by order dated 27.02.2020.

Aggrieved by the said order, the present revision is filed by the petitioner.

5. On a perusal of the impugned order, it reveals that one Tmt.Mani,

the wife of the first defendant was examined as DW1, during her cross

examination in the suit, she has categorically stated that, "gpujpthjpfs; 3

ngUf;fhft[k; ehd; rhl;rpak; mspf;fpnwd; vd;why; rhpjhd;/ ,e;j tHf;fpy;

xd;W Kjy; K:d;W gpujpthjpfs; rhl;rpfshf tprhhpg;gjw;F Kd;ghf vd;id

rhl;rpahf tprhhpf;f kD bra;J mDkjp vJt[k; bgwtpy;iy vd;W brhd;dhy;

rhpjhd;"/

6. After the evidence of the independent witness-DW1,

Mr.Paramasivan, the 3rd respondent herein, has filed his proof affidavit for

chief examination as DW2. The contention of the revision petitioners is that

he has not been examined before the examination of the independent

witness-DW1 as per the procedure law laid down under Order 18 Rule 3A of

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CRP.No. 2269 of 2020

CPC. The above said provision is very clear that where the party himself

who wishes to appear as witness, he "shall" so appear before any other

witness on his behalf has been examined, unless the Court for the reasons to

be recorded, permits him to appear as his own witness at a "later stage".

Where DW1 is examined on behalf of the 3rd defendant, the permission to

examine the 3rd defendant at a later stage was not obtained from the Court.

The examination of the 3rd defendant as DW2 subsequent to the

examination of DW1 is not permitted by the procedure. Hence, the proof

affidavit for chief examination of DW2 is liable to be rejected.

7. Counter affidavit filed by the third respondent, wherein, it has been

stated that the wife of the 1st defendant was examined as DW1 as an

independent witness and she has not a party to the suit.