Madras High Court
S.V.Matha Prasad vs Renuka Devi .. 1St on 11 November, 2014
Bench: Sanjay Kishan Kaul, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 06.11.2014 Date of Decision: 11.11.2014 CORAM The Hon'ble MR.SANJAY KISHAN KAUL, CHIEF JUSTICE AND The Hon'ble MR.JUSTICE M.SATHYANARAYANAN O.S.A.Nos.127 and 128 of 2014 S.V.Matha Prasad .. Appellant/2nd Defendant in both O.S.As. vs 1.Renuka Devi .. 1st Respondent/Plaintiff in both O.S.As. 2.E.Lalitha .. 2nd Respondent/1st deft. in both O.S.As. Appeals filed under Clause 15 of the Letters Patent read with Order XXXVI Rule 1 of O.S. Rules, against the order dated 17.04.2014 made in A.Nos.2565 and 2566 of 2014, on the file of Original Side of this Court. For Appellant : Mr.Anoop G.Chaudhary,Senior Counsel Assisted by M/s.June Chaudhary and Sumithira Chaudhary, for Mr.M.Kamalakannan For Respondents : Mr.R.Natarajan for R-1 : Mr.I.Manjur Alam for R-2 * * * * * J U D G M E N T
The Hon'ble Chief Justice Late Thiru.S.V.Ramakrishnan (Testator) is alleged to have executed a Will dated 15.07.1970 and the first respondent before us (original plaintiff) filed a petition on 18.12.2006 for grant of Letters of Administration in respect of the said Will, 26 years after the death of the Testator, who passed away on 31.12.1980. The Testator was married to one Rajalakshmi, the mother of the appellant (original second defendant), who passed away in March, 1952. There were two children born from their marriage, the appellant / second defendant and respondent no.2 / first defendant. It appears that the Testator started living with the sister of Rajalakshmi, Smt.Saroja and the Union produced three daughters and a son. Respondent no.1 is one of the daughters. The petition was opposed by appellant / second defendant and respondent no.2 / first defendant.
2.Respondent no.1 / plaintiff, who is staying in Mysore, entered the witness box as P.W.1 and was examined before the Additional Master-I on 26.08.2010. The counsel for the second respondent / first defendant concluded the cross-examination on 02.12.2010, whereafter the counsel for the appellant / second defendant took adjournment for cross-examination of respondent no.1 / plaintiff. It appears that thereafter there was only a saga of adjournments, though the first respondent / plaintiff appeared for cross-examination on 13.12.2010, 14.12.2010, 16.12.2010, 21.12.2010 and 05.01.2011. The matter was adjourned to 18.01.2011 by the learned Master cautioning that if cross-examination was not carried out on the next date, further testimony of other witnesses on behalf of the first respondent / plaintiff would be recorded. On 18.01.2011 also, the counsel for the appellant / second defendant is stated to have refused to cross-examine the first respondent / plaintiff, whereafter four more witnesses were examined on behalf of first respondent / plaintiff, being P.Ws.2 to 5. Their evidence was concluded on 13.06.2011 and it has been stated that the cross-examination was carried out only by the counsel for the second respondent / first defendant, while the counsel for the appellant / second defendant only adopted that cross-examination.
3.It appears that the cross-examination on behalf of the first respondent / plaintiff of the appellant / second defendant, who appeared in the witness box as D.W.2, was completed on 11.02.2013 and 32 documents were exhibited during that cross-examination by confronting D.W.2, who admitted those documents. However, the first respondent / plaintiff filed applications for recall of the appellant / second defendant for further cross-examination, which were contested by the appellant / second defendant. The applications were, however, allowed on 21.11.2013 by the learned Single Judge and the appeals against the same were dismissed by the Division Bench on 06.02.2014. The sequitur was that the appellant again appeared for cross-examination and was confronted with one more document, which was exhibited as P-78. The evidence of defendants, thus, stood concluded on that date.
4.The appellant, thereafter, filed two applications bearing No.2565 and 2566 of 2014 on 09.04.2014 for recall and re-opening of the evidence of the first respondent / plaintiff with further opportunity to cross-examine her in respect of the documents exhibited in the cross-examination of the appellant / second defendant. It is the say of the appellant / second defendant that before he could make the said applications, the first respondent / plaintiff had moved the applications, which were contested by the appellant / second defendant. The appellant / second defendant pleaded parity with the first respondent / plaintiff on the issue of further cross-examination. These applications were opposed by the first respondent / plaintiff.
5.The learned Single Judge, vide the impunged order dated 15.04.2014, dismissed the applications filed by the appellant / second defendant, aggrieved by which, the present appeals have been filed.
6.Learned Senior Counsel for the appellant submitted that in the cross-examination of the appellant / second defendant, vital documents having material bearing on the case were exhibited and thus, the further examination of the first respondent / plaintiff was necessary. The documents initially exhibited, amongst 32 documents, included an Assignment Deed executed by the first respondent / plaintiff, in which, there has been an admission that the Testator had died intestate with regard to the properties listed in Annexure-A at item nos.3 and 4 of the affidavit of assets, despite having executed the Will and the cross-examination of first respondent / plaintiff on this issue was vital. In substance, the plea is that if the case could have been reopened for cross-examination of the appellant / second defendant, why should the same treatment / benefit be not meted out qua cross-examination of first respondent / plaintiff.
7.Learned Senior Counsel for the appellant relied upon a judgment of this Court by a learned Single Judge in S.S.S. Durai Pandian vs. S.A.Samuthira Pandian, AIR 1988 Madras 323, to contend that the trial Court has got powers to recall the plaintiff for re-cross examination under Order 18 Rule 17 of the Code of Civil Procedure, 1908, (hereinafter referred to as 'the said Code') on the application filed by the defendant, independent of Section 151 of the said Code. The power of Court is very wide and discretionary, though the same has to be exercised with greatest care and in most peculiar circumstances. The right of the Court to act under this Rule was not restricted in case of its own motion.
8.The Court, in fact, pointed out to the learned counsel for the parties the judgment of the Hon'ble Supreme Court in K.K.Velusamy vs. N.Palanisamy, 2011 (4) Scale 61, elucidating the legal position qua an application under Order 18 Rule 17 of the said Code. It has been held that the said provision enables the Court, at any stage of the suit, to recall any witness, who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. Such power can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit requesting the Court to clarify any doubts it may have in regard to the evidence led by the parties and such power is not intended to use to fill up omissions in the evidence of a witness, who has already been examined. However, this is not a provision intended to enable the party to recall any witnesses for their further cross-examination in chief or cross-examination or to place additional material or evidence, which could not be produced when the evidence was being recorded. It is primarily a provision enabling the Court to clarify any issue or doubt, by recalling any witness either suo moto or at the request of any party, so that the Court itself can put questions and elicit answers. Once a witness is recalled for the purpose of such clarification, it may, of course, permit the parties to assist it by putting some questions. For a case to be reopened and/or recall of witnesses for cross-examination, the proper recourse would be to Section 151 of the said Code.
9.On this legal issue, the learned counsel for the first respondent / plaintiff referred also to the judgment of the Hon'ble Supreme Court in M/s.Bagai Construction Thr. Its Proprietor vs. Gupta Building, Material Store, 2013 (2) Scale 769, which, in turn, has referred to the aforesaid judgment. The Court expressed with a view that it was desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. Applications to overcome lacuna in the plaint, pleadings and the evidence ought not to be entertained.
10.In the conspectus of the aforesaid legal position, the learned counsel for the first respondent /plaintiff sought to contend that the appellant / second defendant had never cross-examined any witness of the first respondent / plaintiff including the first respondent / plaintiff, who appeared as P.W.1. He was given numerous opportunities, which were followed by the caution that the right for cross-examination would stand closed and further evidence on behalf of the first respondent / plaintiff would be recorded, the dates of which have already been set out aforesaid. Despite this, there was no cross-examination and even the other witnesses produced by the first respondent / plaintiff were never cross-examined by the learned counsel for the appellant / second defendant. The only cross-examination was by the counsel for the second respondent / first defendant and the counsel for the appellant / second defendant only adopted the said cross-examination. It is submitted that the documents, which have been produced, relate to legal proceedings, affidavits, etc., to which the first respondent / plaintiff was not a party, but the appellant / second defendant was.
11.We have given a thought to the matter and are of the view that the appeals are meritless. If the legal principles enunciated by the Hon'ble Supreme Court in the aforesaid judgments are applied to the facts of the present case, it would be quite apparent that despite repeated opportunities, the counsel for the appellant / second defendant never cross-examined any of the witnesses of the first respondent / plaintiff. The appellant / second defendant, thus, had adequate opportunity, but to no avail. The counsel for respondent no.1 / plaintiff was well within his right to confront the appellant as D.W.2 with documents, which were within his knowledge and thus, proved those documents in cross-examination. The appellant / second defendant cannot be said to have been taken by surprise on being confronted with those documents.
12.The first respondent / plaintiff, did seek further cross-examination and one more document was produced in that process. Whether such permission ought to have been granted or not is a issue no more open, as the exercise of discretion by the learned Single Judge was upheld even by the Division Bench. We, however, fail to appreciate the plea of parity on this account, i.e., because the first respondent / plaintiff was permitted to further cross-examination of the appellant / second defendant, in which process, one more document was exhibited, the appellant / second defendant should be given an opportunity to cross-examine the first respondent / plaintiff as P.W.1 qua all the documents produced by the first respondent / plaintiff during the cross-examination of the appellant / second defendant. Each party has to prove his own case or leads his own defence. As observed by the Hon'ble Supreme Court in the aforesaid two judgments of K.K.Velusamy vs. N.Palanisamy and M/s.Bagai Construction Thr. Its Proprietor vs. Gupta Building, Material Store, supra, the objective cannot be to fill in the lacunae and gaps in the evidence, by this exercise. It is not a case where the Court has felt handicapped and needs any elucidation. These documents pertain to the appellant / second defendant. They are matters of legal proceedings. The appellant / second defendant has not been caught by surprise. Thus, the appellant / second defendant, at this stage, cannot be permitted to cross-examine the first respondent / plaintiff as P.W.1. It is on completion of trial that belatedly the prayer was made by the appellant / second defendant. It is at a stage where even the evidence of the defendants is over and in fact, the applications were filed post adjournment of the suit for final hearing on a date agreed to by the counsel for the parties.
13.The appeals are, thus, completely meritless and the impugned order of the learned Single Judge is unexceptional.
14.We may note another aspect to the matter arising from the plea of the learned Senior Counsel for the appellant that the appellant had also moved an application seeking dismissal of the petition for grant of Letters of Administration on the ground of bar of limitation, but, no order has been passed on that application. What is prayed for is a direction that the said application must be decided first.
15.We are unable to make such directions as prayed for on behalf of the appellant / second defendant. The learned Single Judge, who is seized of the issue, has the application before him. Whether he considers it appropriate to first hear the application pleading bar of limitation at a belated stage or would like to hear all aspects simultaneously is a matter of complete discretion of the learned Single Judge.
16.The endeavour of the appellant, especially keeping in mind, his conduct as reflected from the order sheets, somehow to delay the conclusion of the suit, must be repelled and the appeals are dismissed with costs, quantified at Rs.10,000/- (Rupees ten thousand only) payable to the first respondent / plaintiff, within fifteen days from today.
(S.K.K.,C.J.) (M.S.N.,J.) 11.11.2014 Index : Yes Internet : Yes sra To The Sub Assistant Registrar, Original Side Section, High Court, Chennai.
The Hon'ble Chief Justice AND M.Sathyanarayanan, J. (sra) Judgment in O.S.A.Nos.127 & 128 of 2014 11.11.2014