Arulgnanam vs Ibram Khan
2021 Latest Caselaw 9193 Mad

                                      1

            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                              DATED: 07.04.2021

                                   Coram

              The Hon'ble Mr. Justice C.V.KARTHIKEYAN

                       C.R.P. (PD) No.603 of 2021
                                   and
                         C.M.P.No.5216 of 2021


Arulgnanam
                                                     ..    Petitioner

                                     Vs

Ibram Khan
                                                      ..   Respondent




      Civil Revision Petition filed under Article 227 of Code of Civil
Procedure to set-aside the Fair and Decreetal in I.A.No.460 of 2020 in
O.S.No.193 of 2018 dated 18.12.2020 passed by the learned Principal
District Judge, Cuddalore, and thereby allow the above Civil Revision
Petition.




             For Petitioner           ..   Mr.B.Gopalakrishnan
                                     2



                                 ORDER

This Revision Petition is directed against the order dated

18.12.2020 in I.A.No.460 of 2020 in O.S.No.193 of 2018 now pending

before the Principal District Court, Cuddalore.

2.The plaintiff is the revision petitioner. The plaintiff had filed

O.S.No.193 of 2018 against the defendant seeking a judgment and

decree for a sum of Rs.13,25,333/- together with interest at 12% per

annum on Rs.10,00,000/- from the date of the suit till the date of

decree and also till the date of realization and for costs of the suit.

3.The defendant entered appearance and filed written statement.

Thereafter, issues were framed and the parties were invited to adduce

evidence. The plaintiff examined as witnesses PW-1 to PW-4. PW-1 is

the plaintiff herein and the other witnesses were examined to speak

about the execution of the promissory note namely, the witnesses to

the promissory note and the scribe of the promissory note. All the four

witnesses were also cross-examined by the defendant. Evidence on the

side of the plaintiff was closed. The matter was then posted for

recording evidence on the side of the defendant. At that point of time,

the defendant filed I.A.No.460 of 2020 seeking permission to recall all

the four witnesses examined on behalf of the plaintiff for further cross-

examination.

4.No independent application was filed to reopen the evidence of

the plaintiff.

5.While adjudicating the issue, the only reason given for allowing

the said application was that, in the interest of justice and to give a

fair chance the Court was of the opinion, that the petition has to be

allowed.

6.I am not able to comprehend how the witness can come back

to the witness box and subject themselves for cross-examination

particularly, when the evidence on the side of the plaintiff has been

closed. An order reopening the said evidence will have to be passed.

Only thereafter can the witness can graze the witness box. They

cannot simply come to the witness box and invite the learned counsel

for the defendant to cross-examine them.

7.The defendant will have to give necessary explanation as to

why questions were not put in full to the witnesses when he had an

opportunity to cross examine them. It is seen from the affidavit filed in

support of the I.A.No.460 of 2020 that an averment has been made

that all the four witness had spoken in contradiction to each other. If

that be so, the defendant can take advantage of such contradiction

during the course of arguments and the learned Judge should analyze

the evidence and come to a conclusion. The learned Judge can either

accept the evidence or accept them partly or reject them partly or

rejected them wholly. The privilege is with the learned Judge, but to

subject the witness for further cross-examination merely, since there

is a contradiction between the evidence of PW-1 to PW-4 without any

order to reopen the evidence, in my opinion is not justified. The

defendant should also give positive evidence putting forth his defense

and subject himself for cross-examination. Without taking recourse to

such an action, filing an omnibus petition to recall all the four

witnesses, cannot be appreciated. Therefore, the order is interfered

with.

8.The learned Judge may proceed further and invite the

defendant to adduce evidence. If at all the defendant wants to recall

any of the witnesses, then proper reasons must be disclosed in the

affidavit and an application must be filed to reopen evidence of the

plaintiff and the plaintiff must also be given necessary opportunity to

file a counter and on the basis of the pleadings, and not merely on the

basis of interest of justice, a considered order will have to be passed.

9.With these observations, the Civil Revision Petition is allowed.

The order is set aside. No costs. Consequently, connected civil

miscellaneous petition is also closed.

07.04.2021 Internet:Yes/No Index:Yes/No smv

To The Principal District Judge, Cuddalore.

C.V.KARTHIKEYAN,J.

smv

C.R.P. (PD) No.603 of 2021

07.04.2021