Madras High Court
Antony Metilda vs Vairamuthu on 8 September, 2017
Author: T.Ravindran
Bench: T.Ravindran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.09.2017
Date of Reserving the Order
Date of Pronouncing the Order
29.08.2017
08.09.2017
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
C.R.P.(PD) (MD) No.1132 of 2017
and
C.M.P.(MD) No.5183 of 2017
Antony Metilda ... Petitioner
-vs-
Vairamuthu ... Respondent
PRAYER: Civil Revision Petition is filed, under Article 227 of the
Constitution of India, to set aside the fair and decreetal order, dated
27.02.2017, passed in I.A.No.168 of 2016 in O.S.No.153 of 2003, on the file
of the Sub Court, Pudukottai.
!For Petitioner : Mr.N.Balakrishnan
^For Respondent : Mr.K.Baalsundharam
:ORDER
The civil revision petition has been preferred impugning the fair and decreetal orders, dated 27.02.2017, passed in I.A.No.168 of 2016 in O.S.No.153 of 2003, on the file of the Sub Court, Pudukottai.
2. Seeking to eschew the evidence of P.W.1, on the ground that he had not submitted himself for cross-examination, it is found that the respondent / defendant has laid the application in I.A.No.168 of 2017. It is the case of the of the respondent / defendant that inasmuch as the husband of the petitioner / plaintiff, who has been examined as P.W.1, did not care to submit himself for cross-examination, though the respondent / defendant was always ready and willing to cross-examine him, it is the case of the respondent / defendant that P.W.1 having subsequently died his evidence cannot be allowed to be retained on record and hence, the same is liable to be eschewed and the petitioner / plaintiff should be directed to proceed with the case by tendering evidence and proceed further in the matter to substantiate her case.
3. The above said application was resisted by the petitioner / plaintiff contending that though P.W.1 was ready for cross-examination, on account of the delaying tactics adopted by the respondent / defendant in filing impleadment application and thereby, dragging on the matter endlessly, it is contended that P.W.1 was not examined and meanwhile as P.W.1 died, it is contended that his evidence already recorded cannot be eschewed and the same could be relied upon by the petitioner / plaintiff as a valid evidence as per law and hence, the application is liable to be dismissed.
4. The Court below, on a consideration of the rival contentions put forth by the respective parties, finding that P.W.1 had not subjected himself for cross-examination by the respondent / defendant and in such view of the matter, his evidence cannot be allowed to be remained on record and accordingly, entertained the application preferred by the respondent / defendant. Impugning the same, the present civil revision petition has been laid.
5. It is contended by the learned counsel for the petitioner / plaintiff that inasmuch as P.W.1 could not be cross-examined only on account of the delaying tactics adopted by the respondent / defendant, the subsequent death of P.W.1 by itself would not entitle the respondent / defendant to seek for the eschewment of his evidence and hence, when the petitioner / plaintiff is entitled to rely upon the evidence of P.W.1 on record in the light of Section 33 of the Indian Evidence Act, it is his contention that the Court below had erred in eschewing the evidence of P.W.1 and hence, the said order is liable to be set aside. In this connection, strong reliance is placed on the decision reported in 2005-4-L.W.654 [Kurshid Begum and others vs. Amni Jan and others]. Per contra, it is the contention of the learned counsel for the respondent / defendant that only on account of the failure of P.W.1 to subject himself for cross-examination, even though the respondent / defendant was always ready to cross-examine him, hence, according to the respondent / defendant, the necessity arose for him to seek for eschewment of the evidence of P.W.1 on account of his demise subsequently and there is no error in the order of the Court below in ordering eschewment of P.W.1's evidence.
6. In the decision relied upon by the learned counsel for the petitioner / plaintiff, as it was found that the evidence of the concerned witness (P.W.1) was ordered to be eschewed despite the readiness of the concerned witness to subject himself for cross-examination and as his cross-examination was not made owing to the delaying tactics of the opponent, it was held that in such view of the matter, the eschewment of the evidence of P.W.1 is not sustainable in the eyes of law. However, insofar as the case at hand is concerned, it is found that at one stage of the matter, after P.W.1's evidence was recorded, as the respondent / defendant failed to cross-examine him, it is found that the ex parte decree had come to be passed against the respondent / defendant earlier and thereafter, on the application preferred, the said ex parte decree had been set aside. Be that as it may, it is further found that thereafter, on some occasions though the case had been adjourned for the cross-examination of P.W.1, as per the findings of the Court below, it is noted that P.W.1 had not cared to subject himself for cross-examination by appearing in the Court. Meanwhile, it is found that the respondent / defendant had moved an application in I.A.No.617 of 2011 and on account of the pendency of the said application, it is found that P.W.1 could not be cross-examined by the respondent / defendant and finally, it is found that the said application had also come to be dismissed for non-prosecution. Be that as it may, as seen from the impugned order, it is found that after the ex parte decree had been set aside, P.W.1 had not cared to present himself before the Court for cross-examination by the respondent / defendant and despite the listing of the suit for the cross-examination of P.W.1 from 2015 onwards, it is found that the petitioner / plaintiff had not cared to inform the death of P.W.1 to the Court below. Now, according to the petitioner / plaintiff, as put forth in the counter, P.W.1 had died on 21.04.2011. However, it is found that a memo had been filed before the Court below by the petitioner / plaintiff informing that P.W.1 had died on 29.04.2013. It is, therefore, found by the Court below that even the date of death of P.W.1 has not been correctly furnished by the petitioner / plaintiff, but the facts remains, as per the findings of the Court below, that despite the matter having been listed for the cross-examination of P.W.1 from 2015 onwards, the petitioner / plaintiff had not come forward to inform the death of P.W.1 to the Court and finally when the Court below had passed the conditional order, it is found that only subsequent thereto, the petitioner / plaintiff had filed a memo informing that P.W.1 had died on 29.04.2013. However, as per the counter filed in the present application, it is the case of the petitioner / plaintiff that P.W.1 had died even on 21.04.2011. If that is so, it is found that the petitioner / plaintiff should have informed the death of P.W.1 to the Court below immediately thereafter and the inaction of the petitioner / plaintiff in reporting the death of P.W.1 to the Court below would only go to show that the petitioner / plaintiff has deliberately schemed to suppress the material information to the Court for one reason or the other. Further, it is found that despite the listing of the matter, after setting aside the ex parte decree for P.W.1's cross-examination and though the respondent / defendant was ready to cross- examine him, it is found by the Court below that it is only P.W.1, who had failed to subject himself for cross-examination and therefore, rejected the contention of the petitioner / plaintiff that P.W.1 was not cross-examined owing to the delaying tactics adopted by the respondent / defendant. The Court below has held that P.W.1's cross-examination could not be completed only due to the delaying tactics of the petitioner / plaintiff as above described and not due to the respondent / defendant. In such view of the matter, the Court below, consequently, finding that P.W.1 had died without being cross-examined, in the interest of justice, thought it fit to eschew his evidence and accordingly, entertained the application preferred by the respondent / defendant. As regards the above said factual aspects found and discussed by the Court below in the impugned order, the learned counsel for the petitioner / plaintiff has not disputed the correctness of the same. In such view of the matter, it is found that only owing to the absence of P.W.1 for subjecting himself for cross-examination and the failure of the petitioner / plaintiff to inform the death of P.W.1 immediately to the Court and deliberately suppressing the same, his cross-examination could not be proceeded further and hence, it is found that the respondent / defendant could not be faulted for not cross-examining P.W.1 as put forth by the petitioner / plaintiff and in such view of the matter, it is found that the evidence of P.W.1 could not be allowed to be remained on record as such and accordingly, it is found that the Court below had correctly eschewed the evidence of P.W.1.
7. However, the learned counsel for the petitioner / plaintiff contended that in the light of the decision relied upon him, the evidence of dead person can be taken into account as per Section 33 of the Indian Evidence Act and therefore, the Court below had erred in eschewing the evidence of P.W.1. However, it is found that in the said decision, the Court had held that Section 33 of the Indian Evidence Act enables the Court to consider the relevancy of the evidence of dead person and it has been further held that the Court is not bound to rely upon the contents therein or mode of proof, merely on the production of the same. Accordingly, considering the facts of the case pertaining thereto, it has been found that in the said decision, the Court had held that the enchewment of the evidence of P.W.1 in that case is not correct as his cross-examination could not be done owing to the fault of the opponent party. Whereas, in our case, when it is clearly found that P.W.1 could not be cross-examined only due to the delaying tactics adopted by the petitioner / plaintiff and not on account of the fault of the respondent / defendant, it is found that P.W.1's evidence could not be allowed to be remained in record in the interest of justice and accordingly, it is found that the Court below had rightly ordered the eschewment of P.W.1's evidence and in such view of the matter, the impugned order does not call for any interference from this Court.
8. Resultantly, the civil revision petition fails and it is dismissed with costs. Consequently, connected civil miscellaneous petition is closed.
To:
The Sub Judge, Pudukottai. .