Each defendant in a civil suit retains the right to testify independently, regardless of shared defense or previous depositions.

ORDER

This civil revision petition challenges the order passed by the learned District Munsif at Sulur in I.A.No.5 of 2024 in O.S.No.4 of 2023 dated

21.08.2024.

2. O.S.No.4 of 2023 is a suit for partition and separate possession.

According to the plaintiff, the suit property belonged to one Royappa Gounder. Royappa Gounder died leaving behind his legal heirs, namely, Ramathal, Sivagami and one son, Ramasamy. Ramasamy passed away leaving behind his wife-Kamalam, daughter-Thilagamani, and sons- Thangavel and Saminathan to succeed to the estate. The plaintiff pleaded that as the daughter of Royappa gounder, she demanded for partition and separate possession. As the same was not acceded to, she presented the suit.

3. The defendants did not dispute the relationship between the parties in their written statement. However, they pleaded that by virtue of previous family arrangements, the plaintiff is not entitled to succeed in the suit. In addition, they raised the plea of ouster and that, the suit is barred by time.

4. On the basis of these pleadings, issues were framed and the parties were pushed to trial. She examined herself as PW1 and she was cross examined in full. It was the defendants' turn to let in evidence.

5. The fourth defendant entered the witness box and filed a proof affidavit. He filed the affidavit stating that he is deposing on behalf of defendants 2, 3, 4 and 6. The plaintiff also conducted a detailed cross examination of DW1. Thereafter, the matter was posted for further evidence.

6. The sixth defendant filed her proof affidavit to examine herself as DW2. The proof affidavit was received. Soon thereafter, the plaintiff filed an application to reject the proof affidavit filed by the sixth defendant. The plea of the plaintiff is that there is no necessity for 2 witnesses to be examined for proving the same fact. She relied upon Section 134 of the Indian Evidence Act to substantiate this plea.

7. This application was resisted by the sixth defendant pleading that she has an independent right to depose in the matter.

8. The learned Trial Judge agreed with the plaintiff and rejected the proof affidavit filed by the sixth defendant. Hence, this revision.

9. When the matter came up for admission, I issued notice to the contesting plaintiff. I also ordered a private notice.

10. Notice was taken by Mr.K.Myilsamy and Mr.N.Manoharan has entered appearance on behalf of the contesting plaintiff.

11. Mr.K.Myilsamy contends that every defendant has a right to depose on his or her own behalf in a suit. He adds that for the mere fact,the chief examination of DW1 and DW2 are identical does not mean that the chief examination of DW2 should be rejected. He adds that it is up to the defendants to place such evidence as they desire in support of their case and this cannot be curtailed by the court.

12. Per contra Mr.N.Manoharan argues that during the course of cross examination of DW1, certain vital admissions had been extracted by the plaintiff. He urges that the attempt by the sixth defendant to examine herself as DW2, after having filed a common written statement, is an attempt to withdraw from the admissions already made. Relying upon the judgments of this court in Ravi and another v. Ramar , (2008) 1 CTC 36 and M.Kumar v. S.Subbiah Kone and Shiek Mohammad , (2008) 6 CTC 229, he argues that since the fourth defendant had deposed on behalf of the defendants 2, 3, 4 to 6, there is no necessity for the sixth defendant to enter the witness box. He further urges, Order XVIII Rule 3A bars the sixth defendant from examining herself.

13. I have carefully considered the submission of both