Andhra HC (Pre-Telangana)
Khaleel Beig vs Sk. Mothi Begum on 22 July, 2005
Equivalent citations: 2005(5)ALD228, 2005(5)ALT481
ORDER D.S.R. Varma, J.
1. This revision is directed against the order dated 4-8-2004 in I.A. No. 834 of 2004 in ATC No. 2 of 2002 on the file of Special Officer-cum-II Additional Junior Civil Judge, Vijayawada.
2. The respondent herein filed the above petition under Sections 118 and 119 of Indian Evidence Act (for short 'the Act') seeking permission of the Court to permit her elder son, namely, Sk. Nawab, to depose evidence on her behalf in the above A.T.C., and treat the same as her evidence. The Trial Court having considered the matter, allowed the said application. Aggrieved by the same, the petitioner in A.T.C., preferred this revision.
3. It is the contention of the learned Counsel for the petitioner that as a result of allowing the application, the evidence of the son of the respondent herein would and should be treated as evidence on her behalf, which is not permissible under Section 118 of the Act.
4. To appreciate the said contention, it would be relevant to extract hereunder Section 118 of the Act.
"Section 118: Who may testify :-All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind".
The said provision makes it clear that any person is competent to testify unless he is prevented to do so because of any kind of physical ailment. Therefore, this provision is not relevant for the purpose of filing the application before the Trial Court. Further, Section 119 of the Act deals with the examination of a dumb witness, which is extracted hereunder:
"Section 119: Dumb witnesses :--A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in Open Court Evidence so given shall be deemed to be oral evidence".
The said provision prescribes the procedure as to how a dumb witness can be examined. If the witness is dumb and if such witness is capable of expressing in writing or by signs in the Open Court, such writing or signs shall be treated as oral evidence.
5. In the instant case, the respondent herein is a dumb, deaf and illiterate as well. In such a case, the proper course would be to permit respondent herein to examine herself in the Court in the method and manner prescribed under Section 119 of the Act.
6. It is to be remembered that Section 119 of the Act deals with only examination of a dumb witness but not a deaf and illiterate. Therefore, even if a question is put to a deaf witness and because of the hearing impairment, it is not possible for such a witness even to express by signs. From the affidavit filed in support of the petition filed before the Trial Court, it appears that the respondent herein was not only dumb, deaf but also illiterate. In such a case, even Section 119 of the Act would not come to her rescue completely. The genuine case, if any, of the respondent herein shall not suffer because of the impairment in all the ways and in such a situation, such person cannot be denied of justice even though the evidence is adduced through somebody. Moreover, in the instant case 'somebody' is no other than her son. In such peculiar facts and circumstances, it is always desirable that the respondent herein should be assisted by the son and the evidence of the son should be treated as the evidence of the mother.
7. The above view of this Court is in deviation of a general principle that the evidence of the son has to be treated only as evidence with regard to the facts known to him and the same shall not be treated as the evidence of the respondent herein as such. In order to meet the ends of justice, I am of the view that the Trial Court was justified in allowing the application. Furthermore, it is to be noted that A.T.C., was filed by the petitioner herein seeking declaration that he was a cultivating tenant of the respondent herein under Andhra Pradesh (Andhra Area) Tenancy Act, 1956. In such cases, the oral evidence, if any, will always be tested to a major extent only with reference to revenue records. Oral evidence may be relevant to a very limited extent. Therefore, having regard to this fact also and in view of the peculiar facts and circumstances, particularly in the light of total helplessness of the respondent herein, I am of the view that the Trial Court was right in allowing the petition. I do not find any merits in the revision.
8. In the result, CRP is dismissed. No costs.