Madhu G vs Bindhu G

Dr. Kauser Edappagath, J

Ext.P6 order passed by the Munsiff's Court, Pathanamthitta (for short, 'the trial court') under Order 18 Rule 16 of C.P.C. is under challenge in this original petition.

The petitioner is the plaintiff and the respondents are the defendants in the OS No.5/2023. The suit is one for permanent prohibitory injunction and declaration. The second defendant filed an application before the trial court as IA No.3/2023 under Order 18 Rule 16 of C.P.C. seeking permission to immediately examine him on the ground that he is critically ill. The plaintiff opposed the application stating that he should be examined first. However, the trial court as per Ext.P6 order allowed the application. It is challenging the said order, the plaintiff is before this court.

I have heard Sri.Jacob P.Alex, the learned counsel for the petitioner as well as Sri.Liji J.Vadakedom, the learned counsel for the respondents.

The learned counsel for the petitioner submitted that if the second defendant is allowed to be examined before the examination of the plaintiff, much prejudice would be caused to the plaintiff. As per Order 18 Rule 1 of C.P.C, the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case only the defendant has the right to begin. However, Rule 16 of Order 18 permits the court to examine witnesses immediately in certain circumstances.

The learned counsel for the plaintiff submitted that the plaintiff is prepared to co-operate with the examination of the second defendant provided the plaintiff is first examined. The learned counsel further submitted that the plaintiff is also prepared to appear before the trial court at any time to give evidence. The learned counsel for the second defendant submitted that the second defendant is also prepared to co-operate with the examination of the witness.

I have ascertained from the trial court whether both the plaintiff and the second defendant could be examined in the next week. The learned Munsiff stated that both of them could be examined on 8/4/2024 and 9/4/2024. It is submitted by the learned counsel that the chief affidavit of the second defendant has already been filed and a copy has been furnished to the counsel for the plaintiff. In these circumstances, the Original Petition is disposed of as follows:

(i) The plaintiff shall be present before the trial court on 8/4/2024. He shall furnish a copy of the proof affidavit to the second defendant before the court commences.

(ii) The cross-examination of the plaintiff shall be completed on 8/4/2024 itself.

(iii) The second defendant shall be present before the court on 9/4/2024. If due to health reasons, the second defendant is unable to appear before the court in person, the same shall be informed by the counsel for the second defendant to the court on 8/4/2024. Then, the court shall depute a Commissioner to examine the second defendant. In any case, the examination of the second defendant, either in open court or through Commissioner, shall be done and completed on 9/4/2024 itself.

(iv) The remaining part of the evidence shall be taken at the convenience of the court.