Madras High Court
M. Saroja vs T. Sundari on 12 December, 2008
Author: V. Periyakaruppiah
Bench: V. Periyakaruppiah
In the High Court of Judicature at Madras Date : 12..12..2008 Coram : The Hon'ble Mr. Justice V. Periyakaruppiah C.R.P. ( P.D. ) No: 2725 of 2008 1. M. Saroja 2. G. Ramani 3. R. Minnal Kodi represented by their Power Agent Mrs. Senthamarai, No: 2/19, Rajapuranikar Street, Varadharajapettai, Chennai 600 094. ... Petitioners -vs- 1. T. Sundari 2. G. Gowri 3. D. Kokila 4. T. Manoharan All are residing at No: 2/19, Rajapuranikar Street, Varadharajapettai, Chennai 600 094. ... Respondents .. .. .. Civil Revision Petition under Article 227 of the Constitution of India against the fair and decreetal order dated 08.07.2008 in I.A. No: 3910 of 2008 in O.S. No: 1558 of 2006 on the file of the II Assistant City Civil Court, Chennai. For petitioners : Mr. David Tyagaraj For respondents : Mr. R.S. Ranganathan .. .. .. O R D E R
This revision is filed against the order passed by the lower Court in I.A. No: 3910 of 2008 in O.S. No: 1558 of 2006.
2. The revision petitioners are the plaintiffs / respondents and the respondents are the defendants / petitioners before the lower Court. The case of the parties before the lower Court are as follows :
" (i) The 4th petitioner is the 4th defendant in the above suit. The Power of Attorney Agent of the plaintiffs by name Mrs. Senthamarai in pursuance of the said Power of Attorney executed by the plaintiffs in her favour entered the witness box as P.W.1 and was also cross examined by his counsel. Later another witness by name Mr. Sugirthan was also examined on behalf of the respondents / plaintiffs as P.W.2. Later, the respondents / plaintiffs introduced the 1st plaintiff by name Mrs.M.Saroja as P.W.3 on their behalf and she has filed her proof affidavit. He states that when the plaintiffs had already appointed one Mrs. Senthamarai as their Power of Attorney Agent and examined her P.W.1 to depose their case, the principles of the said Power of Attorney Agent Mrs.Senthamarai, cannot examine themselves as further witnesses for the respondents / plaintiffs. It would tantamount to trying to fill up lacuna. In these circumstances, the proof affidavit filed by P.W.3 (principal of Power of Attorney Agent Mrs. Senthamarai) cannot be accepted and the same is liable to be rejected. Hence this petition.
(ii) In the counter affidavit filed by the respondents it is stated that the respondent is the Power Agent in the above application. The schedule property belongs to Mrs. Saroja, G. Ramani and R. Minnal Kodi, the said Saroja got into the witness box to examine herself as principal. There is no law prohibiting the principal to be examined as she is the primary witness in the case. Further she submits that the Court has to decide the issue at the time of passing judgment and this application is not maintainable under law. The power agent has not paid any consideration to the principal and the principal is only cited as witness, to prove that the Power of Attorney has not been revoked by her. There is no merit in the application to reject the evidence of the principal, it is only to harass the principal and hence this application to reject has been filed by the petitioner which is unsustainable in law and there is no cause of action in the application. Therefore, she requests to dismiss the petition with costs. "
3. The lower Court had considered the plea of the petitioners/ defendants to the effect that the evidence given by P.W.3, the 1st plaintiff, by the way of proof affidavit has to be rejected and passed the orders accordingly. The aggrieved plaintiffs / respondents had preferred this revision petition.
4. Heard the learned counsel for the revision petitioners and the respondents.
5. The learned counsel for the revision petitioner would submit in his argument that the 1st plaintiff had given power of attorney along with other two plaintiffs to one Senthamarai and the power agent has conducted the suit on their behalf and the said power agent was examined on the side of the plaintiff as P.W.1 and yet another witness was examined as P.W.2 and the 1st plaintiff was examined as P.W.3 by filing proof affidavit in order to explain the execution of the Power of Attorney and the lower Court had permitted to examine the 1st plaintiff as P.W.3 by filing proof affidavit and thereafter it had rejected the evidence of P.W.3 in an erroneous view that the power agent of P.W.3 was already examined on behalf of the 1st plaintiff as P.W.1. He would further submit that the reason assigned by the lower Court in eschewing the evidence of P.W.3 is not correct. He would also submit that the plaintiff is always entitled to be examined as one of the witnesses and the procedure followed by the lower Court in rejecting the evidence of P.W.3 in the midst of examination of witnesses on the side of the plaintiff is erroneous and the not in accordance with law. The only course available to the lower Court is to discuss the evidence adduced on the side of the plaintiff only at the time of passing the judgment and, therefore, the order of the lower Court has to be interfered and set aside.
6. The learned counsel for the respondent would submit in his arguments that the lower Court was correct in rejecting the evidence of P.W.3 as she was examined to fill up the lacuna left in the evidence of P.W.2 and there was no necessity for the 1st plaintiff being examined when her agent was already examined as P.W.1. He would therefore request the Court to confirm the order passed by the lower Court and to dismiss the revision petition.
7. I have given anxious consideration to the submissions made by both parties. The lower Court had rejected and eschewed the evidence adduced by P.W.3, the 1st plaintiff, after the proof affidavit was submitted and she was assigned as P.W.3 and posted for her cross examination. The reasons stated by the lower Court was that her evidence was adduced only to fill up the lacuna left in the evidence of P.W.2. It had also discussed that P.W.2 had admitted in the cross examination that the Principals have received a sum of Rs.1,40,000/- from the Power Agent (P.W.1) and the said evidence was likely to be contraverted by the principal and therefore, it became necessary for the lower Court to eschew the evidence. The further reason stated by the lower Court was that the Power Agent of P.W.3 was already examined as P.W.1 and, therefore, the evidence of P.W.3 was not acceptable.
8. It is not a disputed fact that P.W.3 was a party to the suit. She is the 1st plaintiff and on the basis of the power given by her along with two other plaintiffs the power agent had filed the suit on their behalf. Merely because the Power Agent filed the suit the principal cannot be barred from participating in the trial to be conducted by the Power Agent on behalf of the Principal. No doubt, the Power Agent was already examined as P.W.1. The examination of Power Agent on the side of the Principal will not in any way bar the Principal to enter into the box. It is a procedure to be followed by every Court that the parties are to be examined prior to the examination of any witness. However, the lower Court had permitted the 1st plaintiff to be examined as P.W.3 and had received the proof affidavit. The discretion of the Court to permit or not to permit a party for being examined as a witness after the examination of witnesses on his side should have been exercised before hte commencement of the examination of such party and not thereafter. It could be seen that the lower Court had considered the facts and circumstances of the case and had impliedly permitted the 1st plaintiff to be examined as P.W.3 after the witnesses of plaintiffs were examined on her side. Having permitted to examine 1st plaintiff as P.W.3, the lower Court cannot discuss the merits of the case in the midst of examination of witnesses and order eschewing the evidence of P.W.3. The appreciation of evidence adduced by P.W.3 cannot be discussed or considered and decided at the time of examination of witnesses. Such appreciation of evidence shall be done only at the time of passing the judgment by the lower Court. More over, the lower Court should not shut the evidence to be given by parties in the midst of their examination. The evidence of P.W.3 ought to have been continued and completed by the lower Court. Such evidence adduced by P.W.3 should have been appreciated by the lower Court at the time of deciding the case along with the entire evidence whereas the lower Court had gone into the merits of the case even at the initial stage which is not a correct procedure, to be followed. Therefore, it has become necessary for this Court to interfere with the order passed by the lower Court.
9. Accordingly, the order passed by the lower Court is set aside and the evidence of the 1st plaintiff as P.W.3 is ordered to be continued in accordance with law. Accordingly, the revision petition is allowed. Connected miscellaneous petition is closed. There is no order as to the costs.
gp To The Presiding Officer, II Assistant City Civil Court, Chennai