Madras High Court
Rajendran vs A.Saminathan on 1 December, 2010
Author: R.Banumathi
Bench: R.Banumathi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/12/2010 CORAM THE HONOURABLE MRS.JUSTICE R.BANUMATHI C.R.P.(PD)(MD)No.246 of 2009 and M.P.(MD)No.1 of 2009 1.Rajendran 2.Selvi ... Petitioners Vs. A.Saminathan ... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India against the order dated 14.10.2008 made in I.A.No.47 of 2008 in O.S.No.269 of 2006 on the file of the First Additional District Munsif, Kumbakonam. !For Petitioners ... Mr.Chandrasekar ^For Respondent ... No appearance :ORDER
This Civil Revision Petition is directed against the order dated 14.10.2008 passed in I.A.No.47 of 2008 in O.S.No.269 of 2006 on the file of the First Additional District Munsif, Kumbakonam permitting the respondent/plaintiff's wife Kanakam to be examined as the further witness on the side of the plaintiff.
2.The respondent/plaintiff filed the suit for declaring his right to title and interest for the B-Schedule property and consequently, an order for recovery of possession of B-Schedule Property from the defendants and also for determination of future mesne profits.
3.The case of the respondent/plaintiff is that along with A-Schedule property, he purchased B-Schedule property and in 1996, defendants were permitted to reside in B-Schedule property. The grievance of the plaintiff is that the first defendant clandestinely caused B-Schedule property to be assigned with Door No.2/76 and obtained property tax receipt in the name of the first defendant. After issuing notice, the plaintiff has filed the suit for declaration of his right and for recovery of possession.
4. The defendants are resisting the suit contending that they are in possession and enjoyment of A and B-Schedule properties even prior to the purchase of properties by the defendants. According to the defendants, A- Schedule property of the suit is in possession and enjoyment of the defendants as cultivating tenants and they are entitled to all the benefits of the tenancy laws. In the Trial Court, the plaintiff was examined as PW.1 and Exs.A1 to A.25 were marked.
5. After the case was adjourned, for further examination of PW.1, the plaintiff had paralytic attack and he was admitted in Anbu Hospital, Kumbakonam on 17.2.2008 and was discharged on 21.2.2008 and was advised bed rest. Stating that the plaintiff was not able to talk, the plaintiff's wife, Kanakam filed I.A.No.47 of 2008 to permit her to be examined as the plaintiff's witness. She has also filed the proof affidavit. The revision petitioners/defendants resisted the application contending that examination of PW.1 is not even completed in chief examination and even without completion of evidence, both in chief and cross-examination, his evidence could not be considered and without closing PW.1's evidence, further evidence cannot be taken.
6. The said application was allowed by the Trial Court on the ground that the petitioner did not want to scrap the evidence of PW.1 and that she only wants to examine herself as plaintiff's side and observing that plaintiff has right to examine any person as witness to prove his case, the First Additional District Munsif allowed the application.
7. The learned counsel appearing for the revision petitioners/defendants submitted that the Trial Court did not keep in view that the evidence of PW.1 was not yet completed, while so, the plaintiff cannot be allowed to adduce further evidence. It was further submitted that when PW.1 was not available for further cross-examination, the evidence of PW.1 has got no weight and the said evidence has to be eschewed before the plaintiff is permitted to adduce further evidence.
8. Admittedly, the plaintiff was examined as PW.1 and number of documents were marked. It is stated that due to paralytic attack, the plaintiff is not able to speak and therefore, his evidence could not be continued. Since the plaintiff was already examined in part and documents were also marked, insofar as that part of evidence of PW.1, necessarily opportunity is to be given to the defendants to cross-examine PW.1. Without that opportunity to the defendants, the evidence of PW.1 recorded in part will be left as it is. When the opponent is not given opportunity to cross-examine the witness, the evidence of PW.1 cannot be received in evidence and ought to be eschewed while so, the Trial Court erred in saying that the plaintiff's wife does not want PW.1's evidence to be scrapped and on that ground permitted the plaintiff's wife to be examined as PW.2 or to continue the evidence of PW.1 itself. Such an erroneous approach adopted by the Trial Court cannot be countenanced. The documents when marked through a witness and if the opponent cannot cross-examine the witness, if those documents are allowed to be received as evidence, such untested evidence would cause serious prejudice to the opponent.
9. While permitting the plaintiff's wife to be examined as further witness, the Trial Court ought to have recorded his findings as to the fate of PW.1's evidence in part. Of course, the plaintiff has got right to examine his proof witnesses provided his evidence was already completed. When the evidence of PW.1/plaintiff remain incomplete, the Trial Court was not right in permitting the plaintiff's/wife to be examined as witness.
10. The order of the Trial Court dated 14.10.2008 made in I.A.No.47 of 2008 in O.S.No.269 of 2006 on the file of the First Additional District Munsif, Kumbakonam is modified. The First Additional District Munsif, Kumbakonam shall ascertain from the plaintiff whether he would be available for completion of his further chief examination and cross-examination. The plaintiff's wife can be examined only after completion of PW.1's evidence. In case, the plaintiff/PW.1 is not available or his evidence is unable to be recorded, that part of PW.1's already recorded is ordered to be eschewed and the Trial Court may proceed to examine the plaintiff's wife. The Civil Revision Petition is partly allowed in the above terms. No costs. Connected Miscellaneous Petition is closed.
asvm To The First Additional District Munsif, Kumbakonam.