Madras High Court
R.Jayakanthan vs Tmt.B.Sritha on 17 August, 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.08.2011 CORAM THE HON'BLE Mr. JUSTICE K.VENKATARAMAN C.R.P. (PD) Nos.1558 and 1559 of 2011 and M.P.No.1 of 2011 in C.R.P.(PD)No.1558 of 2011 R.Jayakanthan ... Petitioner in both the CRPs. Vs. Tmt.B.Sritha ... Respondent in both the CRPs. Civil Revision Petitions have been filed under Article 227 of the Constitution of India against the petition order dated 8.4.2011 in I.A.Nos.53 and 54 of 2011 in O.P.No.79 of 2010 on the file of the Subordinate Court at Pollachi. For petitioner : Mr.A.Palaniappan, in both the CRPs For respondent : Mr.P.Wilson, S.C., in both the CRPs COMMON ORDER
These revision have been filed challenging the order of the learned Subordinate Judge, Pollachi dated 8.4.2011 allowing the applications filed by the respondent herein made in I.A.Nos.53 and 54 of 2010 in O.P.No.79 of 2010, one to re-open the petitioner's side for further cross examination of P.W.1 and another to re-call P.W.1 for further cross-examination.
2. The petitioner, herein has originally filed O.P.No.2268 of 2008 before the learned Judge of the Family Court at Chennai for dissolution of the marriage between himself and the respondent which took place on 11.7.2007. The said O.P. was transferred to the file of the learned Subordinate Judge, Pollachi and renumbered as H.M.O.P.No.79 of 2010. The respondent also filed another petition in H.M.O.P.No.23 of 2009 against the petitioner herein before the learned Subordinate Judge, Pollachi for restitution of conjugal rights. Both the O.Ps. have been tried together, by an order passed by this Court.
3. After the entire evidence was over in O.P.No.79 of 2010, the respondent has filed the applications referred to above and the same were allowed by the learned Subordinate Judge, Pollachi, by an order dated 8.4.2011. The said order is canvassed through this civil revision petition.
4. I have heard Mr.A.Palaniappan, learned counsel appearing for the petitioner and Mr.P.Wilson, learned Senior Counsel appearing for the respondent.
5. The reasons for filing such applications were set out in paragraphs 6, 7 and 8 of the affidavit filed in support of the petition in I.A.No.53 of 2011, which are extracted here under:-
"6. However, pursuant to the above, P.W.2 was cross examined and it is crystal clear that his evidence contradicts with P.W.1's evidence and hence, to clarify the same, P.W.1 has to be re-examined.
7. I also submit that thereafter, I filed Proof Affidavit. The counsel for P.W.1 made a length cross examination. While cross examining me I was asked many questions, totally on different stand, which are not even in any of his pleadings of his petition, his counter and his proof affidavit. Further, certain documents were marked through me, though the same is not in any of his pleadings. Consequent on marking of such documents, it is necessary to re-examine P.W.1.
8. I also state that very recently I came to know that petitioner has filed Crl.O.P.No.20480 of 2010 before Hon'ble High Court against his Advocate, wherein he has made certain admissions. From the same, I understood that the petitioner has taken various steps to somehow get me divorced, through back door. Hence, I obtained a copy of the same from Hon'ble High Court with great difficulties which I have filed before this Hon'ble Court along with additional proof affidavit. These were not known to me earlier and hence, P.W.1 could not be examined on these points earlier. There are other subsequent events also, which I have come to know now. It has also been noted that certain important points were omitted to be examined, which are vital to prove my case."
6. Thus, on three counts the respondent has filed the applications, which are --
(i) P.W.2 in his cross examination contradicted the evidence given by P.W.1 and hence, P.W.1 has to be re-examined.
(ii) The respondent was cross examined by P.W.1's counsel at length and several questions were asked, which does not form part of the pleadings. Further, certain documents were marked through her, though the same is not in any of the pleadings of the petitioner herein. Hence, it has necessitated the respondent to re-examine P.W.1.
(iii) Very recently, the respondent herein came to know that the petitioner has filed Crl.O.P.No.20480 of 2010 before this Court against his Advocate wherein he made certain admissions. From the said admissions, she understood that the petitioner had taken various steps to somehow get divorce through back door. She has obtained a copy of the said O.P. and has filed the same along with the additional proof affidavit. Hence, P.W.1 has to be examined on those points. There are other subsequent events which she came to know now. Certain important points were omitted to be asked, which are vital to her case.
7.1. On the first count, I am of the considered view that even if P.W.2 in his cross examination has contradicted the evidence given by P.W.1, the same cannot be the reason to re-call P.W.1 for the purpose of re-examining him. In fact, if really there was any contradiction, the same can be taken advantage of by the respondent herein. Hence, I am of the considered view that on the said count, the applications filed by the respondent do not require any consideration.
7.2. On the second count, as set out earlier, since the respondent herein has been examined at length, though not pleaded in the petition, the same cannot be a ground to re-call P.W.1. If she has been cross examined on certain aspects which were not pleaded by the petitioner herein, the same should have been agitated by the counsel appearing for the respondent at the time of cross examining her. The same cannot be a ground to re-call P.W.1.
7.3. The next reason that has been stated in paragraph 7 of the affidavit in support of the application is that certain documents were marked through her, though the same was not in any of the pleadings of the petitioner and hence, it has necessitated to file the applications. The respondent herein has not set out what are the documents that have been marked and a vague pleading has been raised therein, which cannot be accepted. Thus, I am of the considered view that the second count on which the said applications were filed to re-call P.W.1 and to re-examine him, cannot be accepted.
7.4. On the third count referred to above, I am of the considered view that the respondent has not spelled out when she came to know that the petitioner filed a criminal original petition before this Court and what are the admissions made by the petitioner herein in the said petition. Even if certain admissions have been made by the petitioner herein as P.W.1 in the said OP, the respondent herein, who has not spelled out when she came to know of the filing of the OP and when she has obtained a copy of the same, cannot be allowed to re-call P.W.1 after the entire evidence was over. Had it been stated in the affidavit that just before filing the said affidavit, she came to know of the filing of the OP and that necessitated her to file the present applications, one could understand the real situation which the respondent herein has faced. That apart, averments have been made stating that there are subsequent events, which she came to know now and that certain important points have been omitted to be examined which are vital to prove her case. The bald averments made in this regard does not require any consideration at all.
7.5. That apart, the respondent herein has originally come to this Court by filing a transfer petition for transfer of the matter from the file of the learned Subordinate Judge at Pollachi to any other competent Court within Coimbatore District. In fact, the respondent has originally filed Tr.C.M.P.No.118 of 2009 before this court for transfer of the OP filed by the petitioner / husband from the file of the learned Principal Judge of Family Court at Chennai to the file of the learned Subordinate Judge, Pollachi and the same was ordered. In the latest transfer petitions in Tr.C.M.P.Nos.620 and 621 of 2011, she made allegations against the Presiding Officer stating that the said Officer did not record the points made in the evidence that would support her case and was deviating cross examination by giving tips to the other side. The said transfer petitions were dismissed by this Court on 13.12.2010 holding that the lengthy cross examination on behalf of the respondent/wife on P.W.1 and other witnesses would prove that there is nothing wrong on the part of the Presiding Officer. It has been further held that a vague allegation against the Presiding Officer cannot be entertained. Thereafter, the respondent has filed applications before the learned Subordinate Judge, Pollachi to re-open the petitioner's side to eschew the evidence of the petitioner herein, to re-open for cross examination of P.W.1 and to re-call P.W.1 for cross examination. The application to eschew the evidence was rejected by the learned Subordinate Judge, Pollachi on 21.1.2011. Consequently, the other applications were returned as not maintainable on the same day. Thereafter, the present applications referred to above were filed. The above facts would clearly go to show that the respondent herein bent upon stalling the proceedings at every stage without the matter reaching finality.
8. Learned Senior Counsel appearing for the respondent relied on certain decisions and submitted that the power of the Court under Order 18 Rule 17 C.P.C. to re-call and examine the witnesses is wide enough and the applications can be allowed at any stage.
(I) The first decision that has been relied on by the learned Senior Counsel appearing for the respondent is reported in 2009-5-L.W.52 Vadiraj Naggappa Vernekar (d) Through Lrs. vs. Sharad Chand Prabhakar Gogate. By relying on the said decision, the learned Senior Counsel submitted that it is obvious that after cross examining the witnesses, if certain lapses in his evidence came to be noticed which impelled the party to file an application under Order 18 Rule 17 C.P.C., the same could be entertained. Even in the said decision, the Hon'ble Apex Court has held that the said provisions are not intended to be used to fill up the omission in the evidence of a witness, who has already been examined and that the power under the said provisions is to be sparingly exercised in appropriate cases and not as a general rule merely on the ground that re-examination would not cause any prejudice to the parties. Finally, it has been held in the said decision that it is not the scheme intention of Order 18 Rule 17 C.P.C. On the facts of the present case, I am of the considered view that the applications preferred by the respondent to re-open the petitioner's side for further cross examination of P.W.1 and another to re-call P.W.1 for further cross-examination have to be rejected on the reasonings discussed above. Hence, the said judgment may not be of any use to the respondent.
(II) The other decision that has been relied on by the learned Senior Counsel appearing for the respondent is reported in 2009-5-L.W.733 Mary Kamalam vs. Duraiswamy. In the said decision, the respondent thereon has put up some construction over the suit property after passing of interim injunction by the Court below directing him not to alter the suit property in any manner and in view of the subsequent events that had occurred, the petitioner thereon wanted to let in evidence. Finding that valuable reasons have been assigned by the petitioner to re-open the case, to re-call P.W.1 and mark documents on his side to prove certain facts, this Court has held in the said decision that there is nothing wrong in allowing the applications to re-call the witness for further cross examination or cross examination or re-examination. Thus, on the facts of the said particular case, it has been so held by this Court. However, as already pointed out, the facts of the present case may not fit in the facts of the said case. Therefore, the said judgment also may not come to the rescue of the respondent.
(III) Yet another decision that has been relied on by the learned Senior Counsel appearing for the respondent is reported in 1998-I-L.W.778 S.S.S.Durai Pandian v. S.A.Samuthira Pandian. By relying on the said decision, the learned Senior Counsel submitted that with reference to certain exhibits which were filed in the said matter viz., A.2 to A.4, there was no reference about the said documents while examining P.W.1 or cross examining P.W.1 and those documents were marked only at the time of cross examination on the side of the defendants. Therefore, this Court, in the said decision, has held that re-calling or re-examination of the plaintiff would not in any way prejudice the interest of the plaintiff thereon because the plaintiff also would be in a position to refer about the documents filed on behalf of the plaintiff through D.W.1 which would make the evidence substantive. In the case on hand, as already pointed out, the respondent in her affidavit to re-call and re-open, has averred that certain documents were marked through her and consequent to marking of such documents, it is necessary to re-examine P.W.1. But, however, no particulars of the documents have been given in the affidavit. A bald statement made in this regard, which has been extracted above, cannot be entertained. That apart, even in the said decision, it has been held that the power under Order 18 Rule 17 C.P.C. is purely discretionary and has to be exercised with greatest care and only in the most peculiar circumstances. Hence, I am of the considered view that the said judgment also may not come to the rescue of the respondent.
(IV) Yet another decision that was relied on by the learned Senior Counsel appearing for the respondent is reported in 2000-I-L.W.824 S.Dayalan vs. P.Velu. In the said decision, the main contention was as to whether the application under Order 18 rule 17 C.P.C. could be invoked only by Court and not by the party to the suit. It has been held thereunder that it is not necessary that the Court alone could invoke the said provision, but also the party to the suit could invoke the said provision. That apart, in the said matter, the Advocate could not cross examine the witness because of the absence of the party and hence, satisfied with the said reason, the Court below has re-called the witness, which was confirmed by this Court in the said decision. The facts made thereunder, in my considered opinion, may not fit to the facts of the present case. Hence, the said judgment also may not be of any use to the respondent.
(V) The other decision that has been relied on by the learned Senior Counsel appearing for the respondent is reported in 2006-4-L.W.189 Sivakami vs. Shanmugasundaram. By relying on the said decision, the learned Senior Counsel submitted that the Family Court is not an ordinary civil Court where law is applied strictly and vigorously. Some sympathetic consideration could be extended always to the woman where she comes and knocks the door seeking maintenance to save her from starving. That is the case where the wife has filed a suit against her husband before the Family Court claiming maintenance. After the husband was examined, he was not cross examined and the evidence on the side of the husband was closed. The wife has filed an application to re-call her husband for the purpose of cross examination. The said application came to be dismissed by the Court below and a civil revision petition has been filed before this Court. In those circumstances, it has been held by this Court that considering the plight of the wife in her attempt to get maintenance from her husband for eking her livelihood, she has to be given opportunity to cross examine her husband. Only in those circumstances, this Court has said that sympathetic consideration has to be shown to the woman.
9. However, in the present case on hand, the facts extracted above would indicate that P.W.1 and other witnesses have been cross examined at length by the counsel appearing for the wife / respondent herein and thereafter, the wife has come up with a transfer petition for transferring the matter from the file of the learned Subordinate Judge at Pollachi to the file of any other competent Court at Coimbatore making certain allegations against the Presiding Officer stating that he has not recorded the evidence properly. This Court has found that the lengthy cross examination made by her counsel, which was recorded by the said Officer would prove that her statement is not correct and dismissed the transfer petition. Thereafter, the respondent / wife was examined and cross examined. Thus, the entire evidence was over and the matter was posted for arguments. At that stage, the respondent has come out with the present applications for the second time. I have already extracted the reasons for coming out with the applications by the respondent herein. While so, the Court below, without considering those aspects, has allowed the applications. The finding of the learned trial Judge that the parties shall be given sufficient opportunity to prove their case, may not be a reasonable finding in the present case on hand. That apart, when this Court has held in the transfer petition filed by the respondent / wife that the lengthy cross examination on her side on P.W.1 would show that sufficient opportunity has been given to the respondent and the Presiding Officer of the Court cannot be blamed saying that he has not allowed full fledged cross examination, the learned trial Judge has opined that because P.W.1 was cross examined at length on the respondent side, the respondent cannot be denied the opportunity of further cross examination of P.W.1 regarding the new points which are arising subsequently. The same cannot be appreciated at all.
10. Yet another aspect that has to be seen is that the present applications have been filed on 23.3.2011, after the dismissal of the application to eschew the evidence of P.W.1 and the other applications to re-open the case and re-call P.W.1. Thus, there is also delay on the part of the respondent in filing the present applications.
11. Considering the overall circumstances stated above, I am of the considered view that the Court below has erred in allowing the applications filed by the respondent herein.
12. In fine, the order of the learned Subordinate Judge, Pollachi, dated 8.4.2011 made in I.A.Nos.53 and 54 of 2011 in O.P.No.79 of 2010 is liable to be set aside and accordingly, set aside and both the civil revision petitions stand allowed. The learned Subordinate Judge, Pollachi is directed to dispose of the O.Ps. viz., O.P.Nos.23 of 2009 and 79 of 2010 at the earliest, in any event, within a period of one month from the date of receipt of a copy of this order. No order as to costs. Consequently, connected miscellaneous petition is closed.
sbi To The Subordinate Judge, Pollachi