Research › Search › Judgment

Madras High Court · body

2003 DIGILAW 238 (MAD)

V. P. Subramaniam v. P. Saraswathi

2003-02-19

S.JAGADEESAN

body2003
ORDER: The revision is directed against the order of the learned Principal District Munsif, Coimbatore dismissing the application filed by the Petitioner seeking a direction to examine the respondent as a witness. 2. The petitioner filed the suit O.S. No.2261 of 2000 for cancellation of the decree dated 15.12.1997 in O.S. No.2538 of 1996. The petitioner examined his witnesses. The respondent did not propose to examine herself as a witness or any other person as her witness. The petitioner filed I.A. No.97 of 2003 seeking for a direction requiring the respondent to give evidence. 3. The respondent filed a counter stating that she cannot be compelled to give evidence. Further in O.S. No.2538 of 1996, she was examined as P.W.1 and the petitioner has cross-examined her and as such, there is no need for the respondent to give any fresh evidence. The present application has been filed with ulterior motive to elaborately cross-examine the respondent. 4. After hearing both the learned counsel, the Court below dismissed the said petition on 24.1.2003. Hence, the present revision. 5. The revision itself was taken up for final hearing with consent of both the counsel, since M/s.Sarvabhauman Associates filed vakalath for the respondent. On behalf of the respondent, it was brought to the notice of this Court that the suit was dismissed on 30.1.2003 and as such, nothing survives in the revision petition. 6. The learned counsel for the petitioner conceded that the suit was dismissed on 30.1.2003. Since the certified copies of judgment and decree in the suit are not made ready enabling the petitioner to prefer appeal against the dismissal of the suit, it is open to the petitioner to prefer a revision without any relevance to the disposal of the suit. The learned counsel placed reliance on the proviso to Sub-Rule (1) of Rule (1) of O.41 of the Civil Procedure Code as introduced by High Court Amendment (Madras). 7. This Court is unable to agree with the contention of the learned counsel for the petitioner, as the said provision has no relevance at all. When the suit was dismissed, it is always open to the petitioner to prefer the appeal against the judgment and decree in the suit by invoking the appropriate provision. 7. This Court is unable to agree with the contention of the learned counsel for the petitioner, as the said provision has no relevance at all. When the suit was dismissed, it is always open to the petitioner to prefer the appeal against the judgment and decree in the suit by invoking the appropriate provision. But, so far as the revision is concerned, it pertains to an application filed by the petitioner pending the suit for the relief to direct the respondent to examine herself as a witness in the suit. When once the suit is disposed of, even if the application is pending on the date of disposal of the suit, it would become infructuous. 8. But, in this case, prior to the disposal of the suit, the application filed by the petitioner was dismissed. Even if the order of the Court below is set aside and the petition filed by the petitioner is allowed, the order of this Court will be futile one, because of the disposal of the suit. Learned counsel for the petitioner could not appreciate the fact that the respondent cannot be examined in the suit as a witness even if the civil revision petition is allowed, in view of the fact that the suit has already been dismissed. Hence, this Court does not find any merit in the said contention. 9. So far as the maintainability of the application is concerned, this Court asked the learned counsel for the petitioner as to whether the respondent is to examined as a Court witness or as a witness of the plaintiff. 10. Learned counsel for the petitioner very cooly replied that since the respondent did not want to examine herself as a witness, the petitioner had chosen to examine the respondent as his witness. 11. Learned counsel for the petitioner also relied upon Rules 7 and 7-A of O.16 of the Civil Procedure Code. 12. Rule 7 of O.16 of the Civil Procedure Code relates to the power of the Court to require the persons to give evidence or produce documents. The language is very clear that any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power. 12. Rule 7 of O.16 of the Civil Procedure Code relates to the power of the Court to require the persons to give evidence or produce documents. The language is very clear that any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power. This is an enabling provision for the Court, if the Court is so required that the evidence of any person is necessary or a direction is necessary to any person to produce the document. This has nothing to do with the requirement of any of the parties to the proceedings to file any petition for the examination of the witnesses. Rule 7-A of O.16 of the Civil Procedure Code contemplates the issue of summons requiring the attendance of any party. In this cases, the respondent is a party before the Court and as such, no such notice is required. 13. Coming to the contention of the learned counsel for the petitioner that the petitioner has got every right to file the petitions of present nature seeking a direction to examine the respondent as a witness, this Court is of the view that no party to the proceedings can be compelled to give evidence in a Court of law at the instance of the other. It is always open to the Court to draw an adverse inference by the conduct of the party, who keeps away from the witness box. When that be the principle, it is not known as to how a defendant in the suit can be permitted to be examined as a plaintiff witness. Virtually, it may amount to compel the defendant to appear as a witness of the plaintiff and depose against her. If not, she will be subjected to unnecessary questions, which may not be warranted in the nature of the proceedings. Taking into consideration of all these factors, this Court is of the view that the civil revision petition is devoid of any merits. 14. Accordingly, the civil revision petition is dismissed with costs of Rs.1,000 (Rupees one thousand only). Consequently, the above C.M.P. is also dismissed. P.V.-----Petition dismissed.