Andhra Pradesh High Court - Amravati
Smt. Y. Kiranmayee vs Smt. D. Rukminamma on 28 February, 2024
APHC010304902022
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)
[ 3311 ]
WEDNESDAY ,THE TWENTY EIGHTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
CIVIL REVISION PETITION NO: 1145 OF 2022
Between:
Smt. Y. Kiranmayee ...PETITIONER
AND
SMT D RUKMINAMMA AND OTHERS ...RESPONDENT(S)
Counsel for the Petitioner(s):SRI. G RAMESH BABU Counsel for the Respondents: VIVEKANANDA VIRUPAKSHA The Court made the following Order:
The Civil Revision Petition is filed under Article 227 of the Constitution of India, against the order dated 04.04.2022 allowing the petition in I.A.No.1600 of 2021 in O.S.No.21 of 2012 on the file of Court of the III Additional District Judge, Kurnool at Nandyal, filed under Section 120 of the Indian Evidence Act and under Section 151 of CPC to permit the petitioner to lead evidence through her second son Mr.D.Srinivasa Reddy.
2. The plaintiff filed the suit for declaration that the Will dated 16.12.2011 of G.Devalathamma is neither true nor genuine and consequentially to declare plaintiff‟s title over the plaint schedule property and for delivery of possession of the properties to the plaintiffs. The main contention of the plaintiff is that a few days prior to the death of G.Devalathamma, the plaintiff and her husband along with her sons went to 2 CRP.No: 1145 OF 2022 Hyderabad to see G.Devalathamma where she was admitted in Omega Hospital and found that she was in a state of unconsciousness and she could not even identify the family members of the plaintiff. When the suit is coming up for trial, the plaintiff attended before the Court on 12.02.2020 along with the assistance of her relatives and submitted that she was not in a position to depose evidence and requested for an adjournment and later, after passing two adjournments, on 02.03.2020, she attended the Court and filed her affidavit in lieu of examination-in-chief and got marked documents as Exhibits.A1 and A2, however after adjourning the matter for cross- examination, 6 or 7 adjournments were granted and ultimately on 23.03.2021, a memo was filed by the counsel for the plaintiff stating that the plaintiff was not in a position to attend before the Court and depose evidence since she was not coherent. On recording the memo, her examination-in-chief was eschewed, subsequently this petition was filed to examine her second son. The petition was opposed by filing counter of the defendants No.1, 2 and 4 stating that the medical certificate issued by Dr.S.Vijay Babu that the plaintiff is suffering from old age ailments does not contain the period of treatment to come to opinion of the medical condition of the plaintiff and therefore, the certificate is not a complete document to support the version of the petitioner. It is further contended that there is no assertion that the proposed witness has personal knowledge of the allegations in the suit so that he is competent to depose. It is also stated that the parties to the suit, the spouse of a party shall be competent witness in all civil proceedings, whereas the proposed witness, being the son, does 3 CRP.No: 1145 OF 2022 not come under the purview of the said provision and therefore, the proposed witness cannot give evidence in place of the petitioner.
3. After hearing both parties, basing on the decision of erstwhile High Court for the States of Telangana and Andhra Pradesh in CRP.No.1698 of 2018 between V.Kavitha Reddy and two others vs. V.Aditya Reddy and another1, the petition was allowed on the principle that a person who is exclusively managing the affairs of a party to the suit or proceedings, such as, son/daughter can be permitted to depose evidence in the place of their biological parents and further that a party may examine any witness who is present during the course of prosecution and has personal knowledge of the facts concerning the suit. The trial Court further observed that the plaintiff sought to examine the witness as she is unable to depose coherently. It is further observed that the plaintiff who approaches the Court, if fails to adduce satisfactory evidence, would lose the case and if the plaintiff is able to bring the facts which are within the knowledge of his/her agent or family members who got knowledge of certain events can depose the facts within the knowledge of the witness. The trial Court recorded the observation of the Supreme Court in M/S Kamakshi Builders vs M/S Ambedkar Education Society and others2 that title cannot be vested because a witness or a party is not examined. With these observations, the trial Court held that since the plaintiff is unable to depose evidence, and her second son stated to have 1 CRP.No.1698 of 2018 2 2007 (12) SCC 27 4 CRP.No: 1145 OF 2022 knowledge of the facts, she be permitted to examine her second son in the suit in her place. Accordingly, the petition was allowed.
4. Aggrieved by the order, this revision petition is filed stating that the trial Court committed manifest error in passing the impugned order.
5. As can be seen from the office endorsement vide USR.No.38721 of 2022, notices sent to the respondents No.2 to 18 were not returned, vide USR.No.54653 of 2022, notice was served on the respondents No.4, 18 and notice was served on the learned counsel appearing for the respondents No.1, 4 to 6 and 10 to 17, vide USR.No.45964 of 2022, notice was served on the respondent No.3 and notices served on the respondents No.7 to 9 were returned unserved.
6. It is contended by the petitioner that since the order is contrary to the spirit of Sections 118 and 120 of the Indian Evidence Act (in short „the Act‟) and that the trial Court had not properly appreciated the fact that the request of the plaintiff is to lead her evidence through her second son, which does not fall within purview of Section 120 of the Act and as such, the trail Court committed jurisdictional error. It is further stated that the trial Court failed to appreciate that the plaintiff filed a memo and got her evidence eschewed and further that without setting aside the order eschewing her evidence, she is not entitled to lead her evidence. It is also contended that the petitioner could have taken recourse to the enabling provision under Order XXVI Rule 1 CPC, but without taking the same into consideration, the trial Court passed the impugned order.
5
CRP.No: 1145 OF 2022
7. During the course of arguments, the learned counsel for the petitioner vehemently contended that the trial Court committed serious error in allowing the petition under Section 120 of the Act by permitting the second son of the plaintiff to depose evidence in her place. Alternatively, he submitted that a commissioner could have been appointed to record her evidence. It is also stated that without setting aside the order eschewing her evidence, it is not possible to give evidence by any witness for the plaintiff or in her place.
8. The learned counsel for the 1st respondent/plaintiff contended that though the petition was filed under Section 120 of the Act, the trial Court has not permitted evidence of the son of the plaintiff under Section 120 of the Act, but permitted because like any other witness, he can given evidence of facts within his personal knowledge based on the decision of V.Kavitha Reddy and two others vs. V.Aditya Reddy and another (Supra). He further submitted that there is a pleading already taken in the plaint that her son also has knowledge of the fact that G.Devalathamma was in unconscious condition and she was not in a position to execute any will and therefore, to prove the said fact, person having knowledge of the said fact can give evidence and there is no need to seek any permission, however, the petition was filed as a matter of precaution, but not as a legal requirement. In this regard, he placed reliance on decision of this Court in Naseem Noorullah vs. Abdul Salam3 wherein at para 6 held as follows: 3
2002 Law Suit(AP) 342 = 2002(3) ALD 326 6 CRP.No: 1145 OF 2022 "6. In my considered opinion, just because the plaintiff is aware of the full facts of the case, the plaintiff cannot be prevented from examining her husband or any other person as a witness on her behalf. After the parties adduce evidence, any party to the suit is at liberty to request the Court to draw adverse inference, if a competent witness is not examined by any of the parties in the suit without valid or justifiable ground. In my considered opinion, there is no need for any party to file a petition and seek permission of the Court to examine a particular witness in a case."
9. He further relied on decision of this High Court of Telangana and Andhra Pradesh in V.Kavitha Reddy and two others vs. V.Aditya Reddy and another4, wherein at paras 30 to 34 held as follows:
"30. In Man Kaur (Dead) by LRs5 this decision was followed and further explained. Similar issued had arisen out of a suit for specific performance of contract. The Supreme Court summed up the principles in paras 11 and 12 as under:
11. To succeed in a suit for specific performance, the plaintiff has to prove:
(a) that a valid agreement of sale was entered by the defendant in his favour and the terms thereof;
(b) that the defendant committed breach of the contract; and
(c) that he was always ready and willing to perform his part of the obligations in terms of the contract.
If a plaintiff has to prove that he was always ready and willing to perform his part of the contract, that is, to perform his obligations in terms of the contract, necessarily he should step into the witness box and give evidence that he has all along been ready and willing to perform his part of the contract and subject himself to cross examination on that issue. A plaintiff cannot obviously examine in his place, his attorney holder who did not have personal knowledge either of the transaction or of his readiness and willingness. Readiness and willingness refer to the state of mind and conduct of the purchaser, as also his capacity and preparedness on the other. One without the other is not sufficient. Therefore a third party who has no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned.
4 MANU/HY/0060/2018 5 (2010) 10 S.C.C. 512 7 CRP.No: 1145 OF 2022
12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category.
There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. 8
CRP.No: 1145 OF 2022 Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.(emphasis supplied).
31. Thus, in the above decision, the Court clarified that where the law requires or contemplates that the plaintiff or other party to proceed has to establish or prove something with reference to his state of mind or conduct, normally, the person concerned alone has to give evidence and not an attorney holder.
32. But it recognized a situation where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), and held that in such an event it may be possible to accept the evidence of such attorney even with reference to bona fides or readiness and willingness. It gave illustrations of such powers of attorney holders who are husband/wife, who are exclusively managing affairs or his or her spouse, a son/daughter exclusively managing the affairs or old and infirm parent and mother exclusively managing the affairs of a son/daughter living abroad.
33. Therefore, it is clear that the law recognizes that even children who are exclusively managing affairs of their old and infirm parents can give evidence on their behalf even with regard to their principals state of mind or conduct such as regarding bona fides or readiness and willingness.
34. No doubt there is also a principle of law as laid down in Vidhyadhar Vs. Manikrao and others6 that if a party to a suit does not appear in the suit and state his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him was not correct."
10. As can be seen from the order of the trial Court, there is a conscious mention of non application of Section 120 of the Act to the present case because the proposed witness is a son, but not the spouse of the plaintiff. As such, the order cannot be challenged on the ground that it is erroneous to permit son of the plaintiff by application of Section 120 of the Act. The trial Court permitted the son of the petitioner as a witness in the light of the 6 (1999) 3 S.C.C. 573 9 CRP.No: 1145 OF 2022 decision in V.Kavitha Reddy and two others vs. V.Aditya Reddy and another (Supra), but not by relying on Section 120 of the Act.
11. The case can be proved by leading evidence of facts and circumstances necessary to invoke the relief sought. A fact can be proved by the means provided under the Evidence Act and other procedural laws. As rightly contended by the 1st respondent/plaintiff, there could not be a separate application and seek permission of the Court to examine a particular witness in a case. Only embargo could be under Order XVIII Rule 3(A) CPC or under Section 114 of the Evidence Act put adverse to the party wherever it is applicable. In no case, a witness who does not have personal knowledge of fact can depose evidence of such fact except when it is permitted under law. It is a matter of appreciation of evidence after conducting the trial to evaluate whether a party to a proceeding could establish a fact through the evidence of any particular witness or witnesses. The only error committed by the trial Court is to permit the second son of the plaintiff to be witness „in her place‟. It is erroneous on two grounds. Firstly, because a person who does not have personal knowledge of a fact which is exclusively within the knowledge of the plaintiff cannot be deposed by him. If such a fact is within his personal knowledge, he can be a competent witness to speak that fact and Court is not debarred from accepting such evidence. Secondly, when the evidence of the plaintiff was already eschewed, as rightly contended by the revision petitioner, no other witness can give evidence in her place. Except to that extent, the rest of the order of the trial Court holds good. As per the requirement to prove her 10 CRP.No: 1145 OF 2022 case, it is open to the plaintiff to examine any witness, on her side including her son, but not „in her place‟.
12. Accordingly, the revision petition is partly allowed by modifying the order to the extent that the second son of the plaintiff by name D.Srinivasa Reddy to be examined on her side, as a witness, but not „in her place‟. The rest of the order holds good.
No costs.
Interlocutory applications, if any, shall stand vacated. Pending miscellaneous applications, if any, shall stand closed.
______________________ B.S.BHANUMATHI, J Date: 28.02.2024 NSM