Madras High Court
Selvakumar vs V.P.Veerappan on 8 February, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders reserved on Orders pronounced on
02.08.2021 04.08.2021
Coram
THE HONOURABLE Mr. JUSTICE G.CHANDRASEKHARAN
C.R.P.(PD) No.1467 of 2021
and
C.M.P.No.11542 of 2021
Selvakumar ... Petitioner/plaintiff
Vs
1. V.P.Veerappan
2. Leela ... Respondents/defendants
Civil Revision Petition filed under Article 227 of the Constitution
of India, to set aside the fair and decreetal order dated 08.02.2021 passed
by the learned Additional District Court, Namakkal in I.A.No.4 of 2020
in O.S.No.68 of 2019 and consequently dismissed the said I.A.No.4 of
2020 in O.S.No.68 of 2019.
For Petitioner .. Mr.P.T.Rakesh
ORDER
This Civil Revision Petition is filed against the order passed by the
learned Additional District Judge, Namakkal, in I.A.No.4 of 2020 in
O.S.No.68 of 2019 on 08.02.2021.
https://www.mhc.tn.gov.in/judis/
2. The petition in I.A.No.4 of 2020 was filed under Section
151 CPC by the respondents/defendants stating that the suit in O.S.No.68
of 2019 was filed by the petitioner/plaintiff for the relief of specific
performance of contract on the basis of sale agreement dated 14.06.2018.
The case of the respondents is that they have not executed any sale
agreement in favour of the petitioner. The signature allegedly made by
the first respondent is not the signature of the first respondent. The sale
agreement is a forged sale agreement. The respondents have not received
any advance amount from the petitioner. Therefore, they prayed that the
petitioner and the witnesses to the sale agreement had to be examined at
the same time. This petition was resisted by the petitioner/plaintiff on
the ground that the simultaneous examination of witnesses is applicable
only to commercial court. Therefore the respondents prayed for
dismissal of this petition.
3. On considering the rival submissions, learned trial Judge
held that though there is no specific provisions in the Code of Civil
Procedure enabling the party to examine all the witnesses at the same
time (on the same day), in some specific cases, in order to ensure fair
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trial, such a plea can be considered by the court. In this view of matter,
the petition was allowed directing the petitioner herein/plaintiff to
examine all the witnesses in support of the suit agreement at the first
instance; until then, cross examination of the witnesses shall stand
deferred. It is also made clear that as soon as the examination of all the
witnesses on the petitioner side is over, the respondents shall cross
examine all the witnesses forthwith without seeking unnecessary
adjournments. Aggrieved against this order, the petitioner has
approached this Court and filed this Civil Revision Petition.
4. Learned counsel appearing for the petitioner submitted that
the petitioner is not in a position to say now as to whether he is going to
examine one witness or two witnesses; whether he will produce
witnesses or the witnesses have to be summoned. When that be the case,
order of the learned trial Judge directing the petitioner to examine all the
witnesses and then permitting cross examination by the respondents is
not workable and against the law. In this regard, he relied on two
judgments reported in (1) MANU/WB/0338/2005 : 110 CWN 266 (The
Howrah Motor Company Limited ..vs.. Exide Industries Limited) and (2)
https://www.mhc.tn.gov.in/judis/
MANU/KA/8540/2006 : AIR 2007 Kant 58 (A.K.Krishna Murthy ..vs..
S.K.Sukumar).
5. Reading of the judgment reported in (1)
MANU/WB/0338/2005 : 110 CWN 266 (The Howrah Motor Company
Limited ..vs.. Exide Industries Limited) shows that the following questions
arose for consideration:-
“(i) The plaintiff/respondent given liberty to file a
Supplementary Affidavit in respect of the witness who had
already filed his examination-in-chief by way of affidavit.
(ii) The plaintiff has been directed to file further
Affidavit Evidence in respect of other witnesses proposed to
be called by the plaintiff.
(iii) The defendant/appellant has been given liberty
to file their Affidavit Evidence in similar fashion within two
weeks thereafter even before the cross-examination of the
first witness is complete.”
While considering these questions, the court was of the view that
directing the plaintiff and defendants to file Affidavit Evidence before
cross-examining the first witness is not a course approved by law.
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6. In another case viz., MANU/KA/8540/2006 : AIR 2007 Kant
58 (A.K.Krishna Murthy ..vs.. S.K.Sukumar), in a similar situation, the
court directed the parties to file affidavit in lieu of examination in chief
simultaneously. Considering the matter, the Court held that “if the
plaintiff has to commence the evidence, he has to file his affidavit or
choose to file the affidavit of his witness. He is at liberty to file such
affidavit and after cross examination of the witnesses of the plaintiff, if
the defendant feels that there is necessity for him to let-in oral evidence,
he is at liberty to file the affidavit when the case is set down for the
evidence of the defendant, but the defendant cannot be expected to file
the affidavit when the case is posted for the plaintiff's evidence.
7. In the case before hand, the respondents/defendants were not
directed to file their chief examination by proof affidavit. It is seen from
the order, only the plaintiff and his witnesses were ordered to be
examined in chief examination and then the cross examination of
plaintiff side witnesses would commence. This method of examination
was directed for the reason that the respondents had set up a plea of
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forgery. The specific case of the respondents is that they had not
executed the sale agreement in favour of the petitioner and also they
denied the signature in the sale agreement. When that be the case, the
holder of the sale agreement and the witnesses to the sale agreement
would be cross examined with regard to the date and time of execution of
sale agreement, place of execution and as to the attestors, as to the scribe,
as to the consideration etc., If the petitioner/plaintiff is cross-examined,
petitioner side would be in a position to know the line of cross
examination. This would help them to tutor the witnesses and come
prepared to face the cross examination. In that case, the element of
surprise would be lost. That would put the respondents in a
disadvantageous position. Real facts with regard to the sale agreement
will not come to light. Therefore, this Court is of the view that directing
the petitioner and his witnesses to be examined in chief and then cross
examined on the same day would serve the ends of justice. Instead of
filing proof affidavit of plaintiff and other witnesses, plaintiff and other
witnesses may be examined one by one on the same day. The petitioner
may either bring the witnesses to the agreement on his own or he can
take summons through the court for their appearance. In any event, the
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learned trial Judge is directed to fix the date for examination of the
petitioner and witnesses to the sale agreement on the same day and
examine them one by one.
8. This Civil Revision Petition is ordered accordingly. No
costs. Consequently, connected Civil Miscellaneous Petition is closed.
mra 04.08.2021
Index : Yes / No
Internet : Yes / No
Speaking order : Yes / No
To
1. The Additional District Judge,
Additional District Court,
Namakkal.
https://www.mhc.tn.gov.in/judis/
G.CHANDRASEKHARAN, J.
mra
order in
C.R.P.(PD) No.1467 of 2021
and
C.M.P.No.11542 of 2021
.08.2021
https://www.mhc.tn.gov.in/judis/
