Madras High Court
Nagaraji vs Sivasankar on 17 November, 2021
C.R.P.(PD).No.2441 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P.(PD).No.2441 of 2021
and
C.M.P.No.18519 of 2021
Nagaraji .. Petitioner
Vs.
1. Sivasankar
2. Karthikeyan
3. Vellakanni
4. Dharmalingam
5. Nandhini
6. Samundeeswari .. Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, praying to set aside the fair and decretal dated
02.09.2021 passed in I.A.No.1 of 2021 in O.S.No.140 of 2015 on the file of
the Additional District Munsif Court, Tirupattur, Vellore District.
For Petitioner : Mr.PA.Sudesh Kumar
******
1/6
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C.R.P.(PD).No.2441 of 2021
ORDER
The petitioner, who is the plaintiff in O.S.No.140 of 2015 challenges
the order of the learned Additional District Munsif, Tirupattur made in
I.A.No.1 of 2021, an application seeking to scrap and eschew the evidence
of P.W.2 on the ground that P.W.2 has not presented himself for cross-
examination.
2. The suit is one for declaration of title and consequential injunction.
The plaintiff examined one Chinnadurai as P.W.2 on 07.01.2021.
Thereafter, the case adjourned for cross-examination of P.W.2 on four
occasions namely 20.01.2021, 09.02.2021, 12.02.2021 and 05.03.2021.
Since P.W.2 did not appear, accepting the statement made by the plaintiff,
the evidence of P.W.2 was closed and P.W.3 was examined on 30.03.2021.
3. It is at this stage, the defendants came up with this instant
application in I.A.No.1 of 2021, seeking to scrap and eschew the evidence
of P.W.2, since he was not available for cross-examination. This application
was resisted by the plaintiff contending that P.W.2 was actually prevented
from appearing and that he is no more.
4. The learned trail Judge accepted the claim of the defendants and
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C.R.P.(PD).No.2441 of 2021
relying upon the judgment of this Court in Rajendran Vs. A.Swaminathan
in CRP.(PD) (MD) No.1132 of 2010 and Antony Matilda Vs. Vairamuthu
in CRP. (PD) (MD) No.1132 of 2017 concluded that the evidence in the
absence of cross-examination shall not remain or record. On such a
conclusion, the learned trial Judge allowed the application.
5. I have heard Mr.PA.Sudesh Kumar, learned counsel appearing for
the petitioner in this Revision.
6. Mr.PA.Sudesh Kumar, learned counsel would draw my attention to
the judgment of this Court in Dr.Sunder Vs. Inspector of Police in
Crl.O.P.No.21519 and 21520 of 2017, wherein, the Hon'ble Mr.Justice
N.Anand Venkatesh has observed that evidence without cross-examination
can be relied upon and cannot be scrapped. There is a factual difference in
the case before the Hon'ble Mr.Justice N.Anand Venkatesh. The learned
Judge found that the other party had opportunity to cross-examine the
witness and did not avail of the opportunity.
7. But, in the case on hand, it is clear from the records that the witness
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C.R.P.(PD).No.2441 of 2021
had not appeared for cross-examination on four occasions and it is the
plaintiff who had closed the evidence of P.W.2, without taking any coercive
steps to summon P.W.2. I am therefore of the considered opinion that the
judgment of the Hon'ble Mr.Justice T.Ravindran, in Antony Matilda Vs.
Vairamuthu in CRP. (PD) (MD) No.1132 of 2017 dated 08.09.2017 would
squarely cover the issue in the case on hand.
8. Hence, I do not see any merits in this Revision and it is accordingly
dismissed. No costs. Consequently, the connected miscellaneous petition is
closed.
17.11.2021
dsa/ham
Index : No
Internet : Yes
Speaking order
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2441 of 2021
To
Additional District Munsif Court,
Tirupattur,
Vellore District.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).No.2441 of 2021
R.SUBRAMANIAN, J.
dsa/ham
C.R.P.(PD).No.2441 of 2021
17.11.2021
https://www.mhc.tn.gov.in/judis
