D. Thoppias vs Soosai Mary

N. Kirubakaran, J.—The plaintiffs in O.S. No. 491 of 2007 on the file of II Assistant Judge, City Civil Court, Chennai, are before this Court challenging the dismissal of their application in I.A. No. 193 of 2014, seeking permission to examine the 5th plaintiff before the Trial Court, by order dated 17.03.2014.

The petitioners filed the suit in O.S. No. 491 of 2007 for declaration of title and for permanent injunction against the respondents/defendants. The said suit is being contested by the respondents by filing written statement. The 1st petitioner, namely, D. Thoppias, was examined as P.W. 1. Subsequently, an independent witness was also examined as P.W. 2. Thereafter, the petitioners filed I.A. No. 193 of 2014 to grant them leave to examine the 5th plaintiff as a witness on their side. On contest, the said petition was dismissed. Challenging the same, the present revision is filed.

Mrs. R. Aparna, learned counsel for the petitioners would strenuously contend that there is no prohibition for examining all the plaintiffs, who approached the Court. Therefore, the Trial Court erred in dismissing the application seeking permission to examine the 5th plaintiff as a witness on the side of the plaintiffs.

Heard the learned counsel for the petitioners and perused the records.

A perusal of the order passed by the Court below would show that P.W. 1., namely, the 1st plaintiff/1st petitioner herein, was not only examined on his behalf, but also on behalf of other plaintiffs as well. Moreover, the 1st plaintiff/1st petitioner herein is the power of attorney holder of the other plaintiffs/petitioners. Therefore, the evidence given by P.W. 1 is binding on all the other plaintiffs. When power of attorney has been given in favour of the 1st plaintiff/1st petitioner herein and the power agent has been examined, there is no necessity to examine the principal again. Furthermore, P.W. 1 is none other than the brother of the 5th plaintiff and unless the plaintiffs have a common case, they would not have joined together and filed the suit against the respondents/defendants. Probably, to cover up the lacuna in the evidence of P.W. 1, as an afterthought, the petition might have been taken out and that was rightly dismissed by the Court below.

Besides, as rightly pointed out by the Court below, no permission was obtained under Order 8 Rule 3(A) CPC reserving the right of the plaintiffs to examine the 5th plaintiff, at a later stage, after examining other witnesses. In the absence of permission under the said provision, and also taking into consideration, the fact, that P.W. 1 was examined as the power of attorney of other plaintiffs, the petition seeking permission to examine the 5th plaintiff as a witness, was rightly dismissed by the Trial Court. There is no perversity or illegality in the order passed by the N. KIRUBAKARAN, J.

Court below. Hence, the revision fails and the same is dismissed. No costs. Connected M.P. is closed.