Madras High Court
Veerappa Gounder vs Senniappan on 13 February, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.2.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD).No.4215 of 2008 and M.P.No.1 of 2008 1.Veerappa Gounder 2.Seerammal 3.Selvambal 4.Vidhyalakshmi .. Petitioners vs. 1.Senniappan 2.Santhi 3.Indirani 4.Senthilkumar ... Respondents This civil revision petition is filed against the order dated 23.9.2008 passed in I.A.No.104 of 2008 in O.S.No.143 of 2006 by the Addl.District Court-cum-Fast Track Court No.I, Erode. For Petitioner : For Respondent : No appearance ORDER
Inveighing the order dated 23.9.2008 passed in I.A.No.104 of 2008 in O.S.No.143 of 2006 by the Addl.District Court-cum-Fast Track Court No.I, Erode, this civil revision petition is focussed.
2. A 'resume' of facts absolutely necessary and germane for the disposal of this civil revision petition would run thus:
The respondents, as plaintiffs, filed the suit O.S.No.143 of 2006 seeking the following relief:
"To direct the division of the suit properties into four equal shares by metes and bounds and with reference to the good and bad soil by appointing a commissioner and also allot two such contiguous shares to the plaintiffs and put them in separate possession thereof."
The defendants/petitioners entered appearance and trial commenced also. The plaintiffs/respondents adduced evidence and closed their side. On defendants' side defendants 1 to 3 were examined and thereafter without seeking permission under Order 18 Rule 3A C.P.C., simply the chief examination affidavit of D3 was filed. Animadverting upon such filing of D3's chief examination affidavit as D.W.4, the plaintiffs filed I.A.No.104 of 2008 for eschewing the chief examination affidavit of D3 as D.W.4. Whereupon, after hearing both sides, the lower Court allowed the I.A. Being aggrieved by and dissatisfied with the said order, this civil revision petition is focussed by the defendants on various grounds.
3. Despite printing the names of petitioners, no one appeared for the revision petitioners.
4. The learned counsel for the respondents would put forth his argument that Order 18 Rule 3A of C.P.C. contemplates a wholesome procedure that a litigant should not be allowed to fill up the lacuna by examining himself/herself at a later stage, after examining his/her witnesses; in this case, virtually throwing to winds Order 18 Rule 3A C.P.C., D3 has chosen to examine the witnesses on her side and thereafter, had chosen to come forward to examine herself as D.W.4 and as such, the order of the lower Court is in order.
5. I would like to recollect and call up Order 18 Rule 3A of C.P.C. read with Section 135 of the Indian Evidence Act, which are self-explanatory. The sum and substance of all those provisions is to the effect that a litigant should not put the horse behind the cart or fill up the lacuna at a later stage of adducing evidence. Hence, ex facie and prima facie it is clear that the conduct of D3 in filing her chief examination affidavit, without seeking any permission under Order 18 Rule 3A, is illegal and erroneous.
6. However, in this case, after the filing of the chief examination affidavit of D3, no cross-examination was conducted. In such a case, the lower Court could have directed the party to file necessary application under Order 18 Rule 3A of C.P.C., seeking permission. In fact, the defendants themselves should have taken the initiative of filing such an application under Order 18 Rule 3A of C.P.C. But they have erroneously chosen to contest the I.A. filed by the plaintiffs as though they were justified in filing the chief examination affidavit of D3, straight away. Hence, by way of resolving the conflict, I would like to observe as under:-
The petitioners/defendants are at liberty to file an application under Order 18 Rule 3A C.P.C. seeking permission of the Court; Whereupon, after giving due opportunity of being heard to both sides, the trial Court shall decide on that point. If the trial Court decides on merit that such permission should not be granted, then the chief examination affidavit of D3 would, automatically, stand eschewed, as otherwise, the plaintiffs could proceed with the cross of D.W.4. Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
Msk To The Addl.District Court-cum-Fast Track Court No.I, Erode