BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/12/2010 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI C.R.P.(PD)(MD)No.246 of 2009 and M.P.(MD)No.1 of 2009 1.Rajendran 2.Selvi ... Petitioners Vs. A.Saminathan ... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 14.10.2008 made in I.A.No.47 of 2008 in O.S.No.269 of 2006 on the file of the First Additional District Munsif, Kumbakonam. !For Petitioners ... Mr.Chandrasekar ^For Respondent ... No appearance :ORDER
This Civil Revision Petition is directed against the order dated
14.10.2008 passed in I.A.No.47 of 2008 in O.S.No.269 of 2006 on the file of the
First Additional District Munsif, Kumbakonam permitting the
respondent/plaintiff’s wife Kanakam to be examined as the further witness on the
side of the plaintiff.
2.The respondent/plaintiff filed the suit for declaring his right to title
and interest for the B-Schedule property and consequently, an order for recovery
of possession of B-Schedule Property from the defendants and also for
determination of future mesne profits.
3.The case of the respondent/plaintiff is that along with A-Schedule
property, he purchased B-Schedule property and in 1996, defendants were
permitted to reside in B-Schedule property. The grievance of the plaintiff is
that the first defendant clandestinely caused B-Schedule property to be assigned
with Door No.2/76 and obtained property tax receipt in the name of the first
defendant. After issuing notice, the plaintiff has filed the suit for
declaration of his right and for recovery of possession.
4. The defendants are resisting the suit contending that they are in
possession and enjoyment of A and B-Schedule properties even prior to the
purchase of properties by the defendants. According to the defendants, A-
Schedule property of the suit is in possession and enjoyment of the defendants
as cultivating tenants and they are entitled to all the benefits of the tenancy
laws. In the Trial Court, the plaintiff was examined as PW.1 and Exs.A1 to A.25
were marked.
5. After the case was adjourned, for further examination of PW.1, the
plaintiff had paralytic attack and he was admitted in Anbu Hospital, Kumbakonam
on 17.2.2008 and was discharged on 21.2.2008 and was advised bed rest. Stating
that the plaintiff was not able to talk, the plaintiff’s wife, Kanakam filed
I.A.No.47 of 2008 to permit her to be examined as the plaintiff’s witness. She
has also filed the proof affidavit. The revision petitioners/defendants
resisted the application contending that examination of PW.1 is not even
completed in chief examination and even without completion of evidence, both in
chief and cross-examination, his evidence could not be considered and without
closing PW.1’s evidence, further evidence cannot be taken.
6. The said application was allowed by the Trial Court on the ground that
the petitioner did not want to scrap the evidence of PW.1 and that she only
wants to examine herself as plaintiff’s side and observing that plaintiff has
right to examine any person as witness to prove his case, the First Additional
District Munsif allowed the application.
7. The learned counsel appearing for the revision petitioners/defendants
submitted that the Trial Court did not keep in view that the evidence of PW.1
was not yet completed, while so, the plaintiff cannot be allowed to adduce
further evidence. It was further submitted that when PW.1 was not available for
further cross-examination, the evidence of PW.1 has got no weight and the said
evidence has to be eschewed before the plaintiff is permitted to adduce further
evidence.
8. Admittedly, the plaintiff was examined as PW.1 and number of documents
were marked. It is stated that due to paralytic attack, the plaintiff is not
able to speak and therefore, his evidence could not be continued. Since the
plaintiff was already examined in part and documents were also marked, insofar
as that part of evidence of PW.1, necessarily opportunity is to be given to the
defendants to cross-examine PW.1. Without that opportunity to the defendants,
the evidence of PW.1 recorded in part will be left as it is. When the opponent
is not given opportunity to cross-examine the witness, the evidence of PW.1
cannot be received in evidence and ought to be eschewed while so, the Trial
Court erred in saying that the plaintiff’s wife does not want PW.1’s evidence to
be scrapped and on that ground permitted the plaintiff’s wife to be examined as
PW.2 or to continue the evidence of PW.1 itself. Such an erroneous approach
adopted by the Trial Court cannot be countenanced. The documents when marked
through a witness and if the opponent cannot cross-examine the witness, if those
documents are allowed to be received as evidence, such untested evidence would
cause serious prejudice to the opponent.
9. While permitting the plaintiff’s wife to be examined as further
witness, the Trial Court ought to have recorded his findings as to the fate of
PW.1’s evidence in part. Of course, the plaintiff has got right to examine his
proof witnesses provided his evidence was already completed. When the evidence
of PW.1/plaintiff remain incomplete, the Trial Court was not right in permitting
the plaintiff’s/wife to be examined as witness.
10. The order of the Trial Court dated 14.10.2008 made in I.A.No.47 of
2008 in O.S.No.269 of 2006 on the file of the First Additional District Munsif,
Kumbakonam is modified. The First Additional District Munsif, Kumbakonam shall
ascertain from the plaintiff whether he would be available for completion of his
further chief examination and cross-examination. The plaintiff’s wife can be
examined only after completion of PW.1’s evidence. In case, the plaintiff/PW.1
is not available or his evidence is unable to be recorded, that part of PW.1’s
already recorded is ordered to be eschewed and the Trial Court may proceed to
examine the plaintiff’s wife. The Civil Revision Petition is partly allowed in
the above terms. No costs. Connected Miscellaneous Petition is closed.
asvm
To
The First Additional District Munsif,
Kumbakonam.