BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18/07/2007 CORAM The Hon'ble Mr. Justice S.NAGAMUTHU C.R.P NPD (MD) No.625 of 2005 and C.M.P.No.4790 of 2005 Dharmaraj .. Petitioner Vs. Rajalingam .. Respondent Prayer in CRP 86/04:- Revision filed under Article 227 of the constitution of India against the order and fair order made in I.A.No.189 of 2004 in O.S.No.680 of 1995 dated 07.03.2005 on the file of the Subordinate Judge, Kulithalai. !For Petitioner ... Ms.Maria Roseline ^For Respondent ... Mr.K.Govindarajan for M/s.Sarvabhauman Associates :ORDER
The petitioner who is the 10th defendant in O.S.No.680 of 2005, on the
file of the learned Subordinate Judge, Kulithalai, has come forward with this
revision challenging the order dated 07.03.2005 made in I.A.No.189 of 2004. The
respondent is the plaintiff.
2. The suit is for partition filed by the respondent. In the written
statement, the 10th defendant has taken a stand that the suit properties are not
available for partition, in view of a registered Will said to have been executed
by one P.Kailasam Pillai in favour of him on 05.06.1995.
3. During the trial, in order to prove the said Will, the petitioner has
filed I.A.No.189 of 2004, to examine the attesting witnesses. But,
unfortunately, the summon sent to those witnesses had been returned with the
endorsement that they have gone to Mumbai. Therefore, making a statement that
the attesting witnesses are not found, the petitioner wanted to examine the
other persons who have got acquaintance with the handwriting of those attesting
witnesses as required under Section 69 of the Evidence Act. The same was opposed
by the respondent. The lower Court by means of the impugned order has dismissed
the said I.A. Challenging the said order of dismissal, this revision has been
filed.
4. Heard the Learned counsel for the petitioner as well as the learned
counsel for the respondent.
5. The Learned counsel for the petitioner would submit that in order to
prove the registered Will as required under Section 69 of the Evidence Act, at
least one attester has to be examined. But the petitioner is not in a position
to examine at least one such attester, in view of the fact that both the
attesters are not found in their place of residence and it is reported that they
have gone to Mumbai and their Mumbai address could not be traced.
6. Per contra, the learned counsel for the respondent would submit that
unless it is proved to the satisfaction of the Court that the attesting
witnesses are not found anywhere, it is not permissible to examine others to
prove the signatures of the attesters since, under Section 69 of the Evidence
Act, if no such attesting witness can be found, it must be proved that the
attestation of one attesting witness at least is in his handwriting, and that
the signature of the person executing the document is in the handwriting of that
person.
7. The learned counsel for the respondent would further rely on Order XVI
Rule 10 C.P.C., which speaks about the procedure where the witness fails to
comply with the summons. Under Order XVI Rule 10(2) C.P.C., it has been provided
that if a witness intentionally either avoided service or if he fails to appear,
without any lawful excuse, then, the Court has to issue proclamation and follow
the other procedure as laid down. According to the learned counsel, since no
proclamation has been so far made, it cannot be held that the witnesses are not
found so as to permit the petitioner to invoke Section 69 of the Evidence Act.
He would further rely on Judgment of a Division Bench of Patna High Court
reported in AIR 1928 Patna 356 (Mt.Shahzadi Begul v. Muhammad Qasim) wherein, it
has been held that unless a proclamation followed by an order of attachment of
the property of the witness have been made it is not possible to invoke Section
69 of the Evidence Act. The Court has further held that before a party is
entitled to rely upon Section 69 of the Evidence Act, he must ask the Court to
exhaust all process of the Court.
8. I have considered the rival contentions urged by the learned counsel
for both parties.
9. It is admitted by the Learned counsel for the petitioner that during
examination in chief, the petitioner has not chosen to let in any evidence to
the effect that the attesting witnesses were not found in the village. To
explain the same, the learned counsel would submit that when the petitioner was
examined, it was not known to the respondent that the attesting witnesses were
not available. He would further submit that it came to light that the witnesses
have gone to Mumbai and whereabouts are not known only when the summons taken
out for them through the Court were returned. Thus, it is clear that so far no
evidence was let in to satisfy the lower Court that the attesting witnesses were
not found any where, so as to invoke Section 69 of the Evidence Act.
10. It is to be stated that invariably in all cases, the party is not
required to let in evidence to prove that the attesting witnesses are not found.
Instead the party can very well follow the procedure under Order XVI Rule 10
C.P.C. Under the said procedure he has to make an application for proclamation
and for attachment of the property. If only a judicial finding is given by the
Court under Order XVI Rule 10 C.P.C., that the witnesses are not really found
resulting in an order of attachment of properties, then only the requirement
under Section 69 of the Evidence Act, that the witnesses are not found any
where, will get satisfied so as to permit the party to let in evidence to prove
the signatures of the attesters through the persons who are well acquainted with
their signatures. In this case, the petitioner has not chosen to approach the
trial Court under Order XVI Rule 10 C.P.C also. Thus the party has the option
either to let in evidence or to follow the procedure under Order XVI Rule 10
C.P.C., to satisfy the requirements of Section 69 of the Evidence Act.
11. As rightly pointed out by the learned counsel for the respondent, and
also held by the Patna High Court, in the absence of any order of attachment
made by the Court under Order XVI Rule 10 C.P.C., or in the absence of any
evidence about the absence of the attesters and in the absence of any finding to
that effect by the lower Court, the petitioner cannot be allowed to examine any
person to prove the signatures of the attesters of the Will.
12. For the foregoing reasons, I am of the considered view that though the
petitioner is entitled to examine any person/persons who is/are well acquainted
with the signatures of the attesters, the said right will accrue for on the
petitioner if only he satisfies the requirements of Section 69 of the Evidence
Act, either by means of evidence or by following the procedure under Order XVI
Rule 10 C.P.C., and then only he can exercise the said right to summon any
person as stated above. Thus the lower Court, in my considered view was right in
dismissing the said I.A. However, merely confirming the order of the lower Court
would not meet the ends of justice, in my considered opinion. The petitioner
should be given sufficient opportunity to satisfy Section 69 of the Evidence
Act, to invoke the said provision to examine other persons. If such liberty is
not given, it may result in failure of justice and may cause serious prejudice
to the petitioner. In view of the above factual and legal positions, I am
inclined to set aside the impugned order of the lower Court with appropriate
liberty to the petitioner.
13. In the result, the impugned order passed by the learned Subordinate
Judge, Kulithalai, dated 07.03.2005 made in I.A.No.189 of 2004 in O.S.No.680 of
1995, is set aside. I.A.No.189 of 2004, is remanded back to the file of the
learned Subordinate Judge, Kulithalai, with a liberty to the petitioner to take
steps to satisfy the Court as required under Section 69 of the Evidence Act,
either by adducing evidence or by following procedure under Order XVI Rule 10
C.P.C. The lower Court is directed to dispose of the said I.A., in accordance
with law after affording such opportunity to the petitioner.
14. With the above direction, the civil revision petition is dismissed. NO
costs. Consequently, connected C.M.P is closed.
To
The Subordinate Judge,
Kulithalai.