IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 WP(C).No. 5221 of 2009(O) ------------------------- OS.350/2007 of III ADDL.SUB COURT, KOZHIKODE .................... PETITIONER(S): --------------- THRIMESH KUMAR, S/O. KUNHIRAMAN, KACHERI AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON RESPONDENT(S): --------------- K.P. CHANDRAN, S/O. KALLADAPOYIL CHANDU, CHAMBOYIL NILATH, PUTHIYANGADI AMSOM, EDAKKAL DESOM, P.O. EAST HILL, KOZHIKODE. ADV. SRI.K.M.FIROZ FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 5221/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF I.A.NO.4168/2008 IN O.S.NO.350/2007 EXT.P2: COPY OF I.A.NO.365/2009 IN O.S.NO.350/2007 DATED 30.1.2009. EXT.P3: COPY OF I.A.NO.366/2009 IN O.S.NO.350/2007 DATED 30.1.2009. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.5221 of 2009 --------------------------------------------- Dated this the 24th day of February, 2009 JUDGMENT The petitioner is the plaintiff in O.S.No.350/07 on the file of the court of the III Additional Sub Judge, Kozhikode, filed against the respondent for specific performance an agreement for sale. Though the signature in the agreement is admitted by the defendant, he disputed the genuineness of the agreement. 2. The petitioner filed I.A.No.4168/08 stating that the attesting witness to the agreement, Sri.K.P.Prasad, proposes to go to Middle East and therefore, it is just and necessary to record his evidence by appointing a Commissioner. In the affidavit, it was stated that Prasad could be examined either in court or at any convenient place as decided by the court. The petitioner expressed his willingness to bear the necessary expenses. The court below did not pass any order in that application. Later, the petitioner filed I.A.No.365 of 2009 stating that Prasad would go to Middle East on 20.3.2009 and therefore, it is necessary to examine him urgently. It was also prayed that WPC No.5221 /2009 2 the case may be included in the special list for the month of February. It is stated that no orders were passed in I.A.No.365/09 as well. 3. The prayer in the Writ Petition is to issue directions to the court below to ensure that the evidence of Sri.K.P.Prasad is recorded before 10.3.2007. Advocate Sri.Firoz appeared for the respondent. 4. Learned counsel for the respondent submitted that the respondent has no objection in including the case in the special list or in examining Prasad urgently. His only objection is that Prasad can be examined only after the plaintiff is examined. He pointed out that Order 18 Rule 3A of the Code of Civil Procedure provides that 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. The question of application of Rule 3A does not, strictly speaking, arise now. Rule 3A is a bar to a party himself being examined after his witness is examined. The prayer of the petitioner is to examine a witness on his side, before the said WPC No.5221 /2009 3 person leaves India. The plaintiff has not stated whether he proposes to appear as a witness. At the same time, it is made clear by the learned counsel for the petitioner that the plaintiff also proposes to examine himself as a witness. The counsel for the petitioner stated that the petitioner has no objection in being examined first. The only anxiety of the petitioner is that the evidence of Prasad may be recorded before 10.3.2009. In view of the submissions made by the learned counsel for the parties, the Writ Petition is disposed of with the following directions: (i) The court below shall appoint a Commissioner to examine the plaintiff as well as his witness Sri.K.P.Prasad before 10.3.2009. (ii) The plaintiff shall be examined first and Prasad shall be examined only thereafter. (iii) If for some reason, it is found that the court below is unable to get the evidence of the plaintiff recorded immediately, the court below shall grant permission to examine Sri.Prasad on commission. It is made clear that the plaintiff shall always be ready and willing to offer himself as a witness for being examined before the Commission. WPC No.5221 /2009 4 (iv) The learned counsel for the respondent expressed a doubt that the issues are not settled in the case. If the court below has not settled the issues, that shall be done immediately before the plaintiff and his witness Prasad are examined. The Writ Petition is allowed as above. K.T.SANKARAN, JUDGE csl