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2016 DIGILAW 634 (MAD)

J. Vasantha v. Johnson

2016-02-17

V.M.VELUMANI

body2016
ORDER : This Civil Revision Petition has been filed to set aside the fair and decretal order, dated 24.03.2015, passed in I.A.No.207 of 2015 in C.T.O.P.No.1 of 1998, by the learned Principal District Munsif, Nagercoil. 2. The petitioner is the daughter-in-law and Power of Attorney of the petitioner in C.T.O.P.No.1 of 1998, viz., Soosaimariyaee. The respondent is the Power Holder of S.R.Manoharan, who is the respondent in the said C.T.O.P. The respondent is the owner of vacant site of the suit property. The vacant site was leased out to the husband of the petitioner in the C.T.O.P. She filed the said C.T.O.P., seeking for a direction to sell the vacant land at a price fixed by the Court. The respondent is contesting the same. 3. The petitioner herein was examined as P.W.1. The learned counsel for the respondent cross-examined her with regard to evidence given by her husband in O.S.No.469 of 1997, on the file of Principal District Munsif Court, Nagercoil. The learned counsel for the petitioner objected to the same. The learned Judge recorded the answers subject to objections. The petitioner filed I.A.No.207 of 2015 to delete a portion of her evidence recorded by the Court on the ground that the evidence of her husband was eschewed. The respondent has filed counter statement denying the various averments made by the petitioner and submitted that the evidence of the husband of the petitioner was not eschewed and both the O.Ps. relate to the same property and hence, the learned Judge has rightly recorded the evidence subject to objection. 4. The learned Judge considering all the materials on record, by order dated 24.03.2015, dismissed the application filed by the petitioner. Against the said order of dismissal, the present Civil Revision Petition is filed. 5. The learned counsel for the petitioner submitted that as per Section 33 of the Indian Evidence Act, the learned Judge ought to have allowed the application. The admission of a living person in another proceedings cannot be recorded in the present suit. The learned Judge erred in holding that even if there is any legal impediment, it could be corrected only at the time of final arguments. The witness Dr.Joseph was not fully cross-examined and the suit has been stayed by this Court and hence, his proof affidavit will not be evidenced. The learned Judge erred in holding that even if there is any legal impediment, it could be corrected only at the time of final arguments. The witness Dr.Joseph was not fully cross-examined and the suit has been stayed by this Court and hence, his proof affidavit will not be evidenced. The parties, viz., the Power of Attorneys are not same and therefore, Section 145 of the Indian Evidence Act is not applicable. The learned Judge erred in allowing the cross-examination of the petitioner on incomplete evidence of Dr.Joseph, in O.S.No.469 of 1997. 6. The learned counsel for the respondent submitted that the evidence of Dr.Joseph was not marked while cross-examination of P.W.1 and only questions were asked with regard to the evidence of Dr.Joseph. The learned Judge recorded the answers with objections, which is a correct procedure. Evidence cannot be shut down at the initial stage. The evidence has to be evaluated at the time of final hearing and either rejected or sustained. 7. In support of their submissions, the learned counsel for the petitioner as well as the learned counsel for the respondent relied on the Judgment of the Hon'ble Apex Court reported in 2001 (3) SCC 1 [Bipin Shantilal Panchal Vs. State of Gujarat and another], wherein in paragraphs 14 and 15, it has been held as follows: "14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 15. The above procedure, if followed, will have two advantages. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses." 8. I have heard the learned counsel for the parties and perused materials available on record and also considered the Judgment relied on by the learned counsel for the petitioner and the respondent. 9. The point for consideration is whether the recording of answers of the petitioner with objections is correct or not. 10. This issue is no longer res integra. The said issue was already settled by number of Judgments of the Hon'ble Apex Court as well as this Court. It is settled that the evidence, both oral and documentary should not be shut down at the initial stage itself. The same has to be taken on file subject to objections. The said evidence has to be considered on merits at the time of final hearing and either rejected or sustained. The Judgment relied on by the learned counsel for the respondent is squarely applicable to the facts of the case. The learned Judge has properly appreciated the materials on record and the Judgments relied on and dismissed the application, giving cogent and valid reasons. The learned Judge has exercised his power properly and there is no infirmity or illegality in the impugned order, dated 24.03.2015, passed in I.A.No.207 of 2015 in C.T.O.P.No.1 of 1998, by the learned Principal District Munsif, Nagercoil. 11. For the above reasons, the Civil Revision Petition is dismissed. No costs. The learned Judge has exercised his power properly and there is no infirmity or illegality in the impugned order, dated 24.03.2015, passed in I.A.No.207 of 2015 in C.T.O.P.No.1 of 1998, by the learned Principal District Munsif, Nagercoil. 11. For the above reasons, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.