Madras High Court
Perumayee W/O. Nallusamy vs Madhammal W/O. Thangavel on 24 April, 2024
C.R.P. No.2345 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.04.2024
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
C.R.P. No.2345 of 2022
and
C.M.P. No.12077 of 2022
Perumayee W/o. Nallusamy ... Petitioner
Vs.
Madhammal W/o. Thangavel ... Respondent
PRAYER: The Civil Revision Petition is filed under Article 227 of
Constitution of India praying to set aside the fair and decreetal order passed
in I.A. No.1 of 2021 in O.S. No.108 of 2021 dated 21.03.2022 on the file of
the Court of Additional Subordinate Judge, Namakkal.
For Petitioner : Mr. A. Muthukumar
For Respondents : Mr. S. Saravana Kumar
ORDER
The Civil Revision Petition is preferred as against the order passed in I.A. No.1 of 2021 in O.S. No.108 of 2021 on the file of the Court of 1/10 https://www.mhc.tn.gov.in/judis C.R.P. No.2345 of 2022 Additional Sub Judge, Namakkal, wherein the petitioner herein has filed a petition to eschew the evidence recorded in the Suit as PW1 and the same was dismissed by the Trial Court. Aggrieved by the said order, the present petition has been filed.
2. According to the petitioner, she is the plaintiff in the main Suit and she has filed the main Suit for relief of declaration and permanent injunction. In fact, the Suit was filed before the learned Additional District Munsif, Namakkal in O.S. No.132 of 2016 and based on the order passed in Tr.O.P. No.88 of 2019 on the file of learned Principal District Judge, Namakkal, the Suit was transferred to the file of Additional Subordinate Court, Namakkal for joint trial along with O.S. No.102 of 2016 pending before the Additional Subordinate Court, Namakkal.
2.1. While so, the husband of the petitioner filed a proof affidavit for chief examination. In fact, the said proof affidavit was filed by Nallusamy without consent and consultation of the petitioner. The said fact had come to the knowledge of this petitioner, when she was tried to pursue the Suit by engaging an another counsel. Therefore, the proof affidavit filed by the petitioner’s husband has to be withdrawn.
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3. According to the respondent, as per the order passed by the Principal District Court, Namakkal in Tr. O.P. No.88 of 2019 only, the case was transferred to the file of Additional Subordinate Court, Namakkal and the petitioner has not challenged the said order. Though the petitioner is not a party in the Suit in O.S. No.102 of 2016, her husband only arrayed as defendant. Therefore, he filed proof affidavit, since there was joint trial ordered. The petitioner’s husband is a competent person to file proof affidavit. Therefore, the same has to be withdrawn only by the husband of the petitioner, but not by this petitioner. If at all the petitioner aggrieved by the said affidavit, she has to file application to scrap the evidence and but not by seeking withdrawal. The husband of the petitioner already filed the proof affidavit as PW1. Therefore, the Civil Revision petition is liable to be dismissed.
4. Before the Trial Court, no oral or documentary evidences are adduced on either side and the Trial Court after hearing both sides and perusal of records, dismissed the petition. As against the said order, the present revision petition is filed by the petitioner. 3/10 https://www.mhc.tn.gov.in/judis C.R.P. No.2345 of 2022
5. The learned counsel appearing for the petitioner would contend that the husband of the petitioner is a party in O.S. No.102 of 2016 on the file of Principal Subordinate Court, Namakkal. The petitioner herein is a party in O.S. No.132 of 2016 on the file of District Munsif Court, Namakkal and the same was transferred to the file of Additional Subordinate Court, Namakkal to conduct joint trial along with O.S. No.102 of 2016 as per the order passed by the Principal District Court, Namakkal.
5.1. While the facts are being so, the husband of the petitioner without the consent and knowledge of this petitioner, filed proof affidavit in the Suit filed by the petitioner i.e., O.S. No.108 of 2021. Therefore, the affidavit filed by the husband of the petitioner without her knowledge, is liable to be withdrawn. The filing of proof affidavit came to the knowledge of the petitioner only when she pursued the matter to engage some other counsel and hence she filed petition. But the trial Court without considering the petitioner’s request, dismissed the petition by holding that the evidence already adduced in the part-heard suit cannot be eschewed. The above observation of the trial Court is liable to be set aside by allowing this revision petition.
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6. The learned counsel appearing for the respondent would contend that already the Suit, which was pending before the District Munsif Court, Namakkal was transferred to the file of Additional Subordinate Court, Namakkal to try along with O.S. No.102 of 2016 pending before the Additional Subordinate Court, Namakkal based on the order passed by the Principal District Court, Namakkal in Tr. O.P. No.88 of 2019. The said transfer order was not challenged by the petitioner and hence the husband of the petitioner filed proof affidavit in the O.S. No.108 of 2021 as plaintiff’s side evidence. The spouse is competent to examine as witness in the Civil Suit as per Section 120 of Indian Evidence Act. Therefore, the reasons stated by the petitioner that without her consent, proof affidavit was filed, is not an acceptable one. The Trial Court also after elaborate discussion, dismissed the petition. Therefore, the order passed by the Trial Court is in order and the present revision petition is liable to be dismissed.
7. This Court heard both sides and perused the materials available on record.
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8. In this case, according to the petitioner, she is the plaintiff in O.S. No.108 of 2021 and her husband was arrayed as defendant in the connected suit in O.S. No.102 of 2016, but during the trial, the husband of the petitioner was examined as PW1 in the said O.S. No.108 of 2021, where he is not a party, without the consent and knowledge of the petitioner. Therefore, the evidence tendered by the husband of the petitioner as PW1 has to be withdrawn. According to the respondent, the husband is competent to give evidence on behalf of his wife as per Section 120 of Indian Evidence Act and already the husband of the petitioner examined as PW1 and the same was recorded and the case is posted for cross examination. At that stage, the petitioner filed this petition and she is not a competent person to withdraw the affidavit filed by her husband and only PW1 has to file an applicationand therefore the petition is not maintainable.
9. It is an admitted fact that PW1 is not a party to the Suit in O.S. No.108 of 2021 and the petitioner herein is also not a party to the O.S. Nioi.102 of 2016. While so, the competent person to tender evidence in O.S. No.108 of 2021 is the plaintiff. However, as per Section 120 of Indian Evidence Act, the spouse is a competent person to tender evidence, but in 6/10 https://www.mhc.tn.gov.in/judis C.R.P. No.2345 of 2022 this case, the spouse / plaintiff herself has challenged the proof affidavit filed by the husband of the petitioner. Once the Court recorded the evidence, there is no provision to eschew the evidence and the present petition filed by the petitioner to withdraw the evidence of PW1. The husband of the petitioner has not filed any application to recall the evidence of PW1.
9.1. In this context, it is relevant to refer judgment in D.F. Philips versus Damayanthi Kailasam and others reported in CDJ 2010 MHC 1572, wherein this Court in Para 28 held as follows:-
“28. There is no provision for eschewing the incomplete evidence of a witness. The evidentiary value or probative value of such evidence is a matter to be considered by the Trial Court, situations would arise where on account of less favorable answers given in the initial stage of cross examination, the witness may avoid the box on subsequent occasions. In such circumstances, the trial Court is justified in forming an opinion about the probative value of such evidence in the peculiar factual background. In all cases where there was no deliberate attempt on the part of the witness to avoid cross examination, evidence would be admissible but its probative value is a matter to be decided by the trial Court. Merely by avoiding further cross examination, it cannot be said that the entire evidence has to be eschewed 7/10 https://www.mhc.tn.gov.in/judis C.R.P. No.2345 of 2022 from consideration. It is always possible for the Court to examine all the surrounding circumstances leading to the avoidance of further cross examination and to come to a definite conclusion as to whether it was deliberate act on the part of the witness”.
10. Therefore, in view of the above said judgment, there is no provision to eschew the evidence and once the evidence is recorded, the same has to be kept in Court records and the concerned Court has to see the evidence at the time of passing final adjudication. In this case also, according to the petitioner, without her knowledge, the proof affidavit was filed. Therefore the evidence of PW1 recorded before the Trial Court has to be considered by the Trial Court only at the time of passing final judgment and the parties can agitate the evidence of PW1 in the manner known to law. The Trial Court also in its order observed that if the evidence tendered by the witness is to be eschewed, such witness must have died or his whereabout is not known. The above observation is not correct. Even if the witness died, the evidence cannot be eschewed and it has to be decided in accordance with the provisions of the Evidence Act. However, the Trial Court dismissed the petition. But the reasons stated by the Trial Court are not correct. Therefore, the order passed by the Trial Court need not be set 8/10 https://www.mhc.tn.gov.in/judis C.R.P. No.2345 of 2022 aside. However, the petitioner is at liberty to adduce evidence before the Trial Court by examining herself and to adduce other further witnesses in accordance with law. Therefore, there is no bar to examine the petitioner as witness in the Suit in O.S. No.108 of 2021.
11. With the above observations, the Civil Revision Petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed .
24.04.2024 [½] Index : Yes / No Internet : Yes / No Neutral Citation Case :Yes/No mjs To The Additional Subordinate Court, Namakkal.
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