Arumugam Pillai Vs. Pathirakali Ammal and anr. - Court Judgment

Excerpt:
civil - application - order 18 rule 3a of code of civil procedure, 1908 - defendants filed petition under order 18 rule 3-a and section 151 to condone non-examination of 1st defendant ahead of dw1 and to permit her to be examined as dw2 in case - court below decreed in favour of defendants - revision petition by plaintiff - nothing on record to show that dw1 in chief examination gave evidence relating to damages concerned in other suit - application by 1st defendant allowed by court below only in interest of justice - opportunity also given to other side to let in further evidence - it cannot be said only to fill up lacuna 1st defendant sought to be examined after examination of dw1 - held, under these circumstances order passed by court below proper and correct - revision petition dismissed. - ordera. ramamurthi, j.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 ofthe 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 and as 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 3-a, 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 andthereafter, 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 of d.w.1 and permit her to examine as d.w.2.6. the learned council for the revision petitioner / plaintiff contended that the learned district munsif exceeded his jurisdiction in granting an opportunity to the 1st defendant to examine herself contrary to order 18 rule 3-a of civil procedure code. the learned district munsif completely overlooked the attempt on the part of the 1st defendant to fill up the lacuna in the evidence of d.w.1. the court also erred in the jurisdiction in granting permission to the 1st respondent to examine herself contrary to the provisions in law when the matter had not yet come to the final decision before the division bench of this court. the decisions cited on behalf of the revision petitioner were also not properly considered.7. the learned counsel for the revision petitioner relied on the decision reported in n.c. kaladharan v. kamaleswaran, that seeking postponement of his evidence before examination of attester of will on ground that if will is properly proved, he can lead evidence. such ground is not sufficient for reversing normal order of examining parties, since will can always be marked subject to formal proof and it cannot be said that unless and until will is proved, party will not be able to refer to contents of will in his evidence.8. reliance is also placed on s. srinivasan v. balambal and ors., : 2000(1)ctc646 relating to order 18 rule 3-a cpc and it has been stated that 'in view of conflicting decisions with regard to question of obtaining prior permission for examining plaintiff or defendant at later stage is mandatory or directory, registry is directed to place matter before hon'ble chief justice for placing same before division bench'.9. the learned counsel for the respondents relied on ramgulam choudhary v. nawin choudhary, : air1972pat499 that 'question whether an order was a 'case decided' depends upon whether or not there was an adjudication for the purpose of suit or proceeding some right or obligation of parties in controversy. the order can be revised only if there was such an adjudication and suffered from jurisdictional error.10. the learned counsel also relied upon subbian v. siva kumar, : 2000(4)ctc205 that 'any and every order passed in course of suit does not amount to case decided unless such order relates to adjudication of some right or obligation of the parties. even if order amounts to 'case decided' it must still satisfy various clauses enumerated in section 115(1) in order to satisfy maintainability of revision petition'.11. reliance is also placed upon punjab national bank, rajpur township v. amrit industries and ors., : (2000)10scc38 as follows:'it cannot be said the order passed by the trial court was without jurisdiction or suffered from any such error which warranted interference of the high court under section 115, cpc. such interference by the revisional courts during the course of trial only prolongs litigation and it is not in the interest of the parties that the trial of the cases should prolong. as far as the respondents arc concerned, it is always open to the respondents to take such pleas in appeal if the decree goes against the respondents'.12. the decisions aforesaid are relied on by the learned counsel for the respondents in order to show that the present revision petition filed by the revision petitioner is not maintainable in law since it cannot be construed that the case was decided. however, the learned counsel for the petitioner contended that it is clear from order 18 rule 3-a that the party should get permission from the court before examining his other witnesses. order 18 rule 3-a reads as follows:-3a. party to appear before other witnesses:- where a party himself wishes to appear as a witness, he shall so 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.13. it is admitted that whether the provision under order 18, rule 3 is mandatory or directory is a subject matter pending before this court in a division bench. there were conflicting views relating to examination of parties after the examination of the witnesses. whatever it may be, admittedly the 1st defendant has not obtained any permission from the court before the examination of d.w.1. now, d.w.1 happened to be the husband of the 1st defendant and he was examined as a witness with reference to o.s. no. 42 of 2000. the 1st defendant is figuring as plaintiff in o.s. no. 329 of 2000, which is filed for damages and as such, the evidence of the plaintiff in o.s. no. 329 of 2000 is absolutely necessary. there is nothing on record to show that d.w.1 in chief examination had given evidence relating to the damages concerned in the other suit. it is only in the interest of justice, the application filed by the 1st defendant was allowed by the court below and an opportunity was also given to the other side to let in further evidence. it cannot be said that only to fill up the lacuna, the 1st defendant is sought to be examined after the examination of d.w.1. under the circumstance, i am of the view that the order passed bay the court below is proper and correct. no prejudice also will be caused to the revision petitioner in any way and it is always open to the revision petitioner also to let in rebuttal evidence, if necessary at a later point of time. hence, these points are answered accordingly.14. for the reasons stated above, the revision petition fails and is dismissed. consequently, cmp no. 12910 of 2001 and vcmp no. 4626 of 2002 are closed. it is also made clear that an opportunity to the revision petitioner should be given by the court below to let in rebuttal evidence after the evidence of the defendants is completed.

Judgment:
ORDER

A. Ramamurthi, J.

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 ofthe 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 and as 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 3-A, 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 andthereafter, 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 of D.W.1 and permit her to examine as D.W.2.

6. The learned council for the revision petitioner / plaintiff contended that the learned District Munsif exceeded his jurisdiction in granting an opportunity to the 1st defendant to examine herself contrary to Order 18 Rule 3-A of Civil Procedure Code. The learned District Munsif completely overlooked the attempt on the part of the 1st defendant to fill up the lacuna in the evidence of D.W.1. The court also erred in the jurisdiction in granting permission to the 1st respondent to examine herself contrary to the provisions in law when the matter had not yet come to the final decision before the Division Bench of this Court. The decisions cited on behalf of the revision petitioner were also not properly considered.

7. The learned counsel for the revision petitioner relied on the decision reported in N.C. Kaladharan v. Kamaleswaran, that seeking postponement of his evidence before examination of attester of Will on ground that if will is properly proved, he can lead evidence. Such ground is not sufficient for reversing normal order of examining parties, since will can always be marked subject to formal proof and it cannot be said that unless and until will is proved, party will not be able to refer to contents of will in his evidence.

8. Reliance is also placed on S. Srinivasan v. Balambal and Ors., : 2000(1)CTC646 relating to Order 18 Rule 3-A CPC and it has been stated that 'in view of conflicting decisions with regard to question of obtaining prior permission for examining plaintiff or defendant at later stage is mandatory or directory, Registry is directed to place matter before Hon'ble Chief Justice for placing same before Division Bench'.

9. The learned counsel for the respondents relied on Ramgulam Choudhary v. Nawin Choudhary, : AIR1972Pat499 that 'question whether an order was a 'case decided' depends upon whether or not there was an adjudication for the purpose of suit or proceeding some right or obligation of parties in controversy. The order can be revised only if there was such an adjudication and suffered from jurisdictional error.

10. The learned counsel also relied upon Subbian v. Siva Kumar, : 2000(4)CTC205 that 'Any and every order passed in Course of Suit does not amount to case decided unless such order relates to adjudication of some right or obligation of the parties. Even if order amounts to 'case decided' it must still satisfy various clauses enumerated in Section 115(1) in order to satisfy maintainability of revision petition'.

11. Reliance is also placed upon Punjab National Bank, Rajpur Township v. Amrit Industries and Ors., : (2000)10SCC38 as follows:

'It cannot be said the order passed by the trial court was without jurisdiction or suffered from any such error which warranted interference of the High Court under Section 115, CPC. Such interference by the revisional courts during the course of trial only prolongs litigation and it is not in the interest of the parties that the trial of the cases should prolong. As far as the respondents arc concerned, it is always open to the respondents to take such pleas in appeal if the decree goes against the respondents'.

12. The decisions aforesaid are relied on by the learned counsel for the respondents in order to show that the present revision petition filed by the revision petitioner is not maintainable in law since it cannot be construed that the case was decided. However, the learned counsel for the petitioner contended that it is clear from Order 18 Rule 3-A that the party should get permission from the court before examining his other witnesses. Order 18 Rule 3-A reads as follows:-

3A. Party to appear before other witnesses:- Where a party himself wishes to appear as a witness, he shall so 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.

13. It is admitted that whether the provision under Order 18, Rule 3 is mandatory or directory is a subject matter pending before this Court in a Division Bench. There were conflicting views relating to examination of parties after the examination of the witnesses. Whatever it may be, admittedly the 1st defendant has not obtained any permission from the Court before the examination of D.W.1. Now, D.W.1 happened to be the husband of the 1st defendant and he was examined as a witness with reference to O.S. No. 42 of 2000. The 1st defendant is figuring as plaintiff in O.S. No. 329 of 2000, which is filed for damages and as such, the evidence of the plaintiff in O.S. No. 329 of 2000 is absolutely necessary. There is nothing on record to show that D.W.1 in chief examination had given evidence relating to the damages concerned in the other suit. It is only in the interest of justice, the application filed by the 1st defendant was allowed by the court below and an opportunity was also given to the other side to let in further evidence. It cannot be said that only to fill up the lacuna, the 1st defendant is sought to be examined after the examination of D.W.1. Under the circumstance, I am of the view that the order passed bay the court below is proper and correct. No prejudice also will be caused to the revision petitioner in any way and it is always open to the revision petitioner also to let in rebuttal evidence, if necessary at a later point of time. Hence, these points are answered accordingly.

14. For the reasons stated above, the revision petition fails and is dismissed. Consequently, CMP No. 12910 of 2001 and VCMP No. 4626 of 2002 are closed. It is also made clear that an opportunity to the revision petitioner should be given by the court below to let in rebuttal evidence after the evidence of the defendants is completed.