Madras High Court
Devaraj vs Muthuvalli on 9 March, 2018
Author: J.Nisha Banu
Bench: J.Nisha Banu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.03.2018
(Reserved on 23.11.2017)
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRP(PD)(MD)No.2139 of 2017
and
CMP(MD)No.10584 of 2017
Devaraj ... Petitioner
vs.
Muthuvalli ... Respondent
Petition filed under Article 227 of the Constitution of India, against
the fair and decreetal order dated 24.07.2017 passed in I.A.No.103 of 2017 in
O.S.No.68 of 2007 on the file of Subordinate Judge, Pudukkottai.
!For Petitioner : Mr.G.Sridharan
^For Respondent : Mr.R.Shankar Ganesh
:ORDER
This Civil Revision Petition has been filed against the fair and decreetal order dated 24.07.2017 passed in I.A.No.103 of 2017 in O.S.No.68 of 2007 on the file of Subordinate Judge, Pudukkottai.
2.The suit has been filed by the respondent herein against the petitioner for specific performance of the sale agreement dated 20.05.2004 alleged to have been executed by the petitioner. The defence of the petitioner is that the respondent is a professional money lender and the petitioner approached the respondent for the loan of Rs.3,00,000/-, for which, the respondent put conditions such as to execute a registered sale agreement in respect of the suit property and to execute a general power of attorney in favour of a person of his choice and to put up his signatures in blank non judicial stamp papers and blank promissory notes. Such action was done by the petitioner due to financial crisis. According to the petitioner, the respondent has also filed another suit in O.S.No.60 of 2007 against this petitioner for recovery of money through one Palanisamy by filling up a blank signed promissory note which was given by the petitioner in lieu of the said loan.
3.The petitioner would submit that till 20.06.2005, he paid a sum of Rs.78,000/- towards the loan amount and paid a sum of Rs.1,00,000/- towards the principal amount and Rs.6,000/- towards the interest on 20.07.2005 and continued to pay the monthly interest of Rs.4,000/- regularly till 20.04.2006. The petitioner was ready to pay the balance principal amount of Rs.2,00,000/- subject to the return of the signed blank papers and abandonment of O.S.No.60 of 2007. After the evidence of the respondent/plaintiff's side, the petitioner/defendant herein examined himself as DW1 and one Rajavel S/o.Subbiah was examined in chief as DW2 on 02.11.2016 and at the request of the respondent counsel, the case was adjourned to 08.11.2016 and then to 16.11.2016 for cross examination. On 16.11.2016, DW2 turned hostile and deposed that the petitioner herein had committed an offence in dealing with counterfeit currency and spoken contrary to his evidence in the chief examination.
4.In the said circumstances, the petitioner has filed I.A.No.103 of 2017 seeking permission to put questions to DW2 which might be put in cross examination by the adverse party. The said petition was resisted by the respondent contending that only to drag on the proceedings, the instant petition has been filed and the Court below by impugned order dated 24.07.2017 dismissed the petition holding that DW2 cannot be treated as hostile witness, against which, the present revision petition has been filed.
5.Learned counsel for the petitioner would state that the evidence of the plaintiff's side was closed and the petitioner herein has examined DW2 in chief on 02.11.2016 and at the request of the counsel for respondent, the case was adjourned to 08.11.2016 and then to 16.11.2016 for cross examination. On 16.11.2016, DW2 turned hostile and deposed before the Court that the petitioner had committed an offence dealing with counterfeit currency and spoken contrary to his evidence in the chief examination and hence, it is contended that the petitioner doubts the credibility of DW2 by turning hostile, thus there is material evidence for recalling DW2 under Section 154 of the Indian Evidence Act.
6.In support of his contentions, learned counsel for the petitioner would rely upon the judgments reported in 2014 (1) CTC 440 S.Bhaskaran vs. R.Loganathan(deceased) and K.Natarajan vs. Thangaiah reported in 2015 (5) CTC
86.
7.Per contra, learned counsel for the respondent would contend that the petitioner is the vendor and the respondent is purchaser of the suit property in O.S.No.68 of 2007 on the file of Sub Court, Pudukkottai, seeking the relief of specific performance. It is further submitted that in the suit, trial has commenced, DW2 has been examined and it is pending for further evidence on the part of the petitioner.
8.Learned counsel for the respondent would further submit that the petitioner instead of seeking remedy by invoking the provisions of Order 18 Rule 17 CPC, has invoked Section 154 of the Indian Evidence Act. The sum and substance of the argument of the counsel for respondent is that the above interim application is only a delaying tactics and the witness cannot be recalled to fill up lacuna and therefore, the application is not maintainable.
9.Heard the learned counsel for the petitioner and perused the materials available on record.
10.The only point to be decided in this case is whether the petitioner can invoke Section 154 of the Indian Evidence Act or not. At this jucture, it is relevant to extract Section 154 of the Indian Evidence Act which reads as follows:-
''154. Question by party to his own witness.?(1)The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.''
11.The above section is an exception to the general rule which could be done only by adverse party. The said provision gives wide discretion to the Court to permit a person to recall a witness to put any question which might be put in cross examination by the adverse party.
12.Perusal of the records shows that during the cross examination, DW2 deposed before the Court that the petitioner had committed an offence dealing with counterfeit currency and spoken contrary to his evidence in chief examination and therefore, the petitioner had sought for permission of this Court by filing the present interlocutory application to put questions to DW2 which can be cross-examined by the adverse party. The learned Judge holding that DW2 cannot be treated as hostile, dismissed the application for questioning DW2.
13.In S.Bhaskaran vs. R.Loganathan(deceased) reported in 2014 (1) CTC 440, relied on by the learned counsel for the petitioner at paragraph 26, this Court held as follows:-
''26.Thus, it is seen that a witness who has been produced by a party as his witness when resiled from his previous statement made before any authority or court the person who has cited him as his witness may recall such witness and cross examine him like the opposite party. But, for mere asking such recalling of the witness will not be permitted by the Court. The Court has to exercise its judicial discretion to recall the witness. Before recalling the witness, there must be material to show that the witness has gone back from his earlier statement or he is not speaking the truth or exhibits an element of hostility or changed his sides. But such recalling of the witness is not adjudicating the matter itself. Such recalling is to extract the truth of the matter from the witness. That is what the basic function of the Court. But, such recalling of the witness has nothing to do with the appreciation of the evidence of such witness. Merely because a witness resiled from his previous statement, his evidence is not washed off. His evidence has to be subjected to appreciation/scrutiny like the evidence of any other witness. The wider power given to the Court under section 154 of the evidence act cannot be restricted to any stage or period within which the witness has to be recalled.''
14.In K.Natarajan vs. Thangaiah reported in 2015 (5) CTC 86, the learned Judge after elaborate discussion had stated that since Section 154 is the only provision under which a party calling his own witness is entitled to seek permission of the Court to cross examine him, such provision should be given a meaningful interpretation. The Court should be given the discretion to entertain the application even after closing the evidence, in case proper and sufficient reasons are given for the failure to invoke Section 154 of the Evidence Act earlier. There cannot be a straitjacket formula in such cases. It is for the Trial Court to take a decision in the matter taking into account the facts and circumstances of a given case and in the interest of justice.
15.The above judgments clearly show that the Court should be satisfied that there is a material to show that the witness had gone back from his earlier statement or he is not speaking the truth or exhibiting element of hostility or changed his side. According to the petitioner, DW2 has stated that the petitioner was involved in an offence dealing with counterfeit currency and such a statement according to the petitioner would have a serious impact in the present case. The suit is for specific performance and the petitioner's contention is that the respondent is a money lender and when he approached him for money, taking advantage of his financial crisis, the respondent obtained signed documents from him and has filed the present suit. Therefore, in the interest of justice, no prejudice will be caused, if the petitioner is permitted to recall DW2 and put questions and thereafter, the respondent can cross examine DW2. Therefore, in my considered opinion, the impugned order passed by the learned Judge calls for interference.
16.Accordingly the impugned order dated 24.07.2017 passed in I.A.No.103 of 2017 in O.S.No.68 of 2007 on the file of Subordinate Judge, Pudukkottai, is set aside and the petitioner is permitted to recall DW2 and put questions and thereafter, the respondent is at liberty to cross examine DW2.
With the above direction, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
To The Subordinate Judge, Pudukkottai.
.