SUPREME COURT OF INDIA

Before:- A.P. Misra and Doraiswamy Raju, JJ.

Civil Appeal No. 6102 of 2000. D/d. 30.10.2000.

N.C. Kaladharan - Appellant

Versus

Kamaleshwaran and others - Respondents

Civil Procedure Code, Order 18 Rule 3A - Examination of parties - Usual practise - To examine before examination of witness - Appellant not wishing to appear as a witness in the suit - Question of priority of his examination first - Loses its relevance.

[Para 4]

ORDER

1. Leave granted.

2. Heard counsel for the parties.

3. The main question which is addressed to this Court against the impugned order is, whether the High Court was right to insist on the examination of the appellant first before the examination of the witnesses to formally prove the Will. The High Court relying on the provisions of Order 18 Rule 3A Civil Procedure Code observed that normal and healthy practice which is adopted by the trial Court is to call upon the parties to the suit before their witnesses are examined. The High Court did not find any fault in such approach, hence rejected the case of the appellant. The contention for the appellant before the High Court was that Sections 67 and 68 of the Evidence Act, require formal proof of a Will and only when the will is properly proved, he can lead his evidence, in case he is examined first it will not be possible for him or for the Court to use the will as evidence in the course of his examination. This submission of the appellant was rejected by the High Court.

4. Learned counsel for the appellant has stated before us, which is also recorded earlier in our order dated 14.7.2000, that the appellant does not desire to appear as a witness in this suit. In view of this, the very question of the priority of his examination first loses its credence. In view of this, the Court may proceed to examine the evidence in terms of Sections 67 and 68 of the Evidence Act. Hence no question of insisting upon the appellant to be examined first arises now. With these observations and modification of the impugned order, the appeal stands disposed of. Costs on the parties.

Appeal disposed of.