Madras High Court
Dakshanamoorthy vs K.N.Ponnurangam on 8 October, 2014
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.10.2014 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.R.P.(PD) No.1289 of 2011 & M.P.No.1 of 2011 & M.P.No.1 of 2012 1.Dakshanamoorthy 2.Ethiraj 3.Jayalakshmi 4.Balamani 5.Anjalai 6.Panjavarnam 7.Munisamy 8.Ponnusamy 9.Mani 10.Selvaraj 11.Rosammal 12.Laxmi ... Petitioners Vs. 1.K.N.Ponnurangam 2.A.Loganathan ... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India against the order passed in I.A.No.384 of 2010 in O.S.No.293 of 2006 dated 25.11.2010 on the file of the Principal Sub Court, Chengalpattu. For Petitioner : Mr.K.Hariharan For Respondents : Mr.N.A.Nissarahmed ----- O R D E R
The plaintiffs in O.S.No.293 of 2006 pending on the file of the learned Subordinate Judge, Chengalpattu are the petitioners in the present revision.
2. The said suit came to be field by them against 1) A.Loganathan and 2) K.N.Ponnurangam for the relief of partition and separate possession of their shares in the suit properties. The said Loganathan seems to have executed a sale deed dated 13.05.2005 registered as Document No.4352 of 2005 on the file of the Sub-Registrar, Guduvancheri in respect of the suit properties in favour of K.N.Ponnurangam holding out that he was the absolute owner of the property as he had got it allotted to his share in a oral partition. For correcting the initial of the purchaser therein, a rectification deed dated 24.11.2005 came to be executed and registered as Document No.9551 of 2005 in the office of the very same Sub-Registrar.
3. The said Loganathan filed another suit in O.S.No.356 of 2006 on the file of the District Munsif Court, Chengalpattu for cancellation of the above said sale deed dated 13.05.2005 registered as Document No.4352 of 2005 in the office of the Sub-Registrar, Guduvanchery and for declaring that the rectification deed dated 24.11.2005 was null and void. By an order of the District Judge, O.S.No.356 of 2006 was transferred to the file of the Sub-Court, Chengalpattu for joint trial along with O.S.No.293 of 2006 and on such transfer, O.S.No.356 of 2006 was renumbered as O.S.No.9 of 2009.
4. Joint trial of both suits was conducted in which the witnesses on the side of the plaintiffs in O.S.No.293 of 2006 were examined at the first instance. After the completion of the evidence on the side of the plaintiffs in O.S.No.293 of 2006, the evidence of the first defendant therein, who figured as the plaintiff in the transferred suit O.S.No.9 of 2009 was examined as DW1. In fact, after the filing of the proof affidavit, which was accepted as his evidence in chief examination, he was cross-examined in full by the plaintiffs in O.S.No.293 of 2006. When the turn of K.N.Ponnurangam, who figures as the second defendant in O.S.No.293 of 2006 and the sole defendant in O.S.No.9 of 2009 for cross-examination came up, the learned counsel appearing for him contended that Loganathan (DW1) was totally deaf and he could not be cross-examined. In addition a petition was filed by Ponnurangam under Section 151 CPC for eschewing the evidence of Loganathan (DW1) recorded in the chief examination in the form of proof affidavit and his evidence in the cross-examination made by the counsel for the plaintiffs in O.S.No.293 of 2006.
5. The learned Sub-ordinate Judge, after hearing, passed an order allowing the said petition. As against the said order dated 25.11.2010, the plaintiffs in O.S.No.293 of 2006 have come forward with the present revision invoking the power of this Court under Article 227 of the Constitution of India.
6. After notice, Ponnurangam appeared through counsel. Loganathan, who figured as the second respondent in the revision, passed away and a petition, namely M.P.No.1 of 2012 came to be filed for recognizing the first petitioner Dakshanamoorthy as the legal representative of Loganathan. Admittedly, Loganathan died as a bachelor without leaving any issues. The first petitioner Dakshnamoorthy is admittedly the brother of the deceased Loganathan and hence, the contesting respondent, namely Ponnurangam does not have any objection for allowing the said miscellaneous petition and for recognizing the first petitioner Dakshanamoorthy as the legal representative of the deceased Loganathan. Accordingly, M.P.No.1 of 2012 is allowed.
7. The arguments advanced by Mr.K.Hariharan, learned counsel for the revision petitioners and by Mr.N.A.Nizzar Ahmed, learned counsel for the surviving respondent, namely K.N.Ponnurangam are heard. The materials available on record are also perused.
8. The admitted facts are as follows:
The property in dispute was not the self-acquired property. Loganathan claimed to have got the same as his share in a oral partition. He executed a sale deed dated 13.07.2005 in favour of the surviving respondent Ponnurangam. A mistake found in the said sale deed regarding the initial was also corrected by a subsequent rectification deed dated 24.11.2005. Meanwhile, the revision petitioners, claiming that they have 3/4th undivided share in the property, filed the suit for partition in O.S.No.293 of 2006 on the file of the Trial Court. Loganathan, who conveyed the property in entirety to the surviving respondent K.N.Ponnurangam, also chose to file the suit Tr.O.S.No.9 of 2009 for cancellation of the sale deed which he had executed in favour of Ponnurangam and also for declaring the rectification deed invalid. When both the suits were tried together, the said Loganathan appeared as DW1 and his proof affidavit was accepted as his evidence in chief-examination. He was fully cross-examined by the revision petitioners herein.
9. At the time of examination of Loganathan by the Court for accepting his proof affidavit to be his evidence in chief examination and also at the time of his cross-examination by the learned counsel for the revision petitioners herein, no objection came to be raised by the surviving respondent, namely Ponnurangam. However, when the counsel for Ponnurangam was called upon to cross-examine DW1 (Loganathan), without making efforts to cross-examine, the learned counsel for the surviving respondent herein complained that the witness was totally deaf and hence, he could not be cross-examined. In addition to such representation, I.A.No.384 of 2010 was also filed for eschewing the evidence of Loganathan.
10. The surviving respondent herein, who filed the said petition did not pray for an order for referring Loganathan to an ENT Specialist to find out whether he was totally deaf, as contended by the surviving respondent, and in case, he was partially deaf, whether he could be examined by making him to wear necessary device for enhancing the hearing capacity. Even in case he was found to be totally deaf and the hearing could not be improved by using any device, the surviving respondent could have asked for appointment of an expert in the field to help the Court in cross-examining the Loganathan. The surviving respondent did not do any such sort of things. On the other hand, he simply filed the petition contending that Loganathan, who was examined as DW1, could not be cross-examined and his evidence was liable to be scrapped.
11. The learned trial Judge, who was seized of the matter could have at least chosen to summon the witness and tested his hearing capacity in the enquiry in the petition and if necessary, could have referred him to an ENT Specialist. Without doing so, the learned trial Judge chose to pass the impugned order, which reads as follows:
While cross examination the said DW1 unable to speak anything. He is an deaf person. Therefore he should be examined with the assistance of an expert. Further proof affidavit filed without any assistance. Hence examination of DW1 in chief by proof affidavit is to be scraped from evidence. Otherwise the evidence will forms part of the record and the same will affects the petitioners care.
(The relevant part of the order has been extracted without any correction)
12. A perusal of the said order will make it clear that the learned trial Judge has not acted judiciously. As pointed out supra, without even requiring the proof regarding the hearing capacity of the witness and without there being any note made by the learned trial Judge while recording the evidence of the concerned witness as to his hearing capacity or understanding capacity, the learned trial Judge seems to have simply made an observation that the witness was a deaf person and hence, his evidence in chief examination in the form of proof affidavit has to be scrapped. The learned trial Judge has not adverted to the fact that the witness was cross-examined by the revision petitioners herein and the trial Court did not made any note on the demeanor of the said witness. The order of the learned trial Judge can even be stated to be perverse as it is not based on proper appreciation of evidence and application of the principles governing the recording of evidence. Without even giving an opportunity to the witness to show he was not deaf and he could answer the questions put to him in the cross-examination, the learned trial Judge seems to have taken a rash and hasty decision assigning no valid reason for arriving at a conclusion that the witness was deaf. Viewed from any angle, the order of the learned trial Judge shall not withstand the scrutiny of this Court and the same deserves to be set aside by this Court in exercise of its power of continuous superintendence under Article 227 of the Constitution of India. Hence, this Court comes to the conclusion that the revision shall succeed with the result that the impugned order is liable to be set aside.
13. In the normal circumstances, this Court would have been inclined to remit the matter back to the trial Court to consider the matter again in the light of the observations made by this Court. But such a course is not possible in this case, because the person whose evidence is sought to be eschewed is no more.
P.R.SHIVAKUMAR, J.
gpa
14. In the result, the Civil Revision Petition is allowed and the impugned order shall stand set aside. By way of clarification it is made clear that this order shall not be an impediment for the surviving respondent to adduce evidence in proof of all this pleas including the one that DW1's evidence is not reliable. No costs. Consequently, the connected miscellaneous petitions are closed.
08.10.2014 Index : Yes Internet : Yes gpa To The Principal Sub Court Chengalpattu C.R.P.(PD) No.1289 of 2011 & M.P.No.1 of 2011 & M.P.No.1 of 2012