Smt. Khathijamma vs Mrs. M.K. Sumithra and P.A. Sathish

Ravi Malimath

This writ petition is by the defendant. After the evidence of the other defendants, IA No. 19 was filed by the petitioner/defendant No. 1 under Order XVIII Rule 3A r/w Sectioo 151 CPC seeking permission of the Court to examine herself Lis a witness. On contest, the application was rejected. Hence, the present writ petition. Learned Counsel for the petitioner submits that the impugned order is bad in law and liable to be quashed and if further proceedings are ailowed it will put the petitioner into serious repercussions in not tendering evidence. In support of her case, the judgment reported in 1982 (1) KLJ 509 (Shamanna vs. Chinnamma & Others) is relied upon to contend that the Court has power to permit either one of the parties to lead their evidence at any point of time. Based on the said judgment, the Court has the power to even summon the witness during the pendency of the suit. The trial Court while passing the impugned order should have considered the reasons for not examining the defendant at the earlier point of time.

In support of the application, the memorandum of facts has bz,,an produced by the petitioner. Except stating that the Court may be pleased. to permit him to lead evidence and if not he would be put to irreparable loss and hardship nothing else ii stated. Reliance is placed on the statement produced to contend that the defendant was unwell and bed ridden. Having considered the same, I do not think it appropriate to interfere with the impugned order. Firstly; no reason is forthcoming as to why the exercise of diszretion should be granted to allow the defendant to lead the evidence. No reasons are forthcoming in the memorandum of facts. Even otheiwise in the objections filed by the plaintiff he has stated that the defendant No. 1 is bed ridden and his other defendants have been examined. This does not mean that defendant No. 1 intended to lead evidence at the subsequent point of time. The decision relied upon by the Learned Counsel for the petitioner is with reference to the power of the Court to permit the party to appear on his own or at a later stage in the suit. It does not need any reasoning to hold that the party has a right to lead evidence at any point of time. It only refers to the judicial discretion of the Court in permitting the party to lead evidence. Hence, in the present case as is ffident from the memorandum of facts and the application, there are no justifiable grounds made out by the petitioner for exercise of discretion by the Court Uncle:. these circumstances, I do not find any error committed by the trial Cowl that calls for interference. Hence, writ petition is dismissed.