Madras High Court
Lilly Ammani vs A.Anandaraj on 27 April, 2023
C.R.P(MD)No.1070 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.04.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.1070 of 2023
and
C.M.P(MD)No.5018 of 2023
Lilly Ammani ... Petitioner/1st Petitioner/
1st Plaintiff
Vs.
1.A.Anandaraj
2.A.Kiruba Ebenezer
3.Lakshmi Raveendran
P.Masanam (died)
4.M.Rajeswari
5.R.Mathivanan
6.R.Micheal John Sundar
7.R.David Rajesh
8.M.Dhanalakshmi
9.P.M.Mathilagan
10.M.Ramesh
11.P.M.Balu
https://www.mhc.tn.gov.in/judis
1/7
C.R.P(MD)No.1070 of 2023
12.R.Jayaramdoss
13.J.Koresh Miller
14.J.Anand Yovakash
15.The Madurai City Municipal Corporation,
Through its Executive Authority,
The Commissioner,
Office at Arignar Anna Maligai,
Tallakulam,
Madurai – 625 002. ... Respondents 12 to 15/
Respondents 1 to 4/Defendants 1 to 4
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to call for records and set aside the fair and
decreetal order dated 23.08.2022 in I.A.No.605 of 2021 in O.S.No.660 of
2010 on the file of the Additional District Munsif, Madurai Town.
For Petitioner : Mr.G.Prabhu Rajadurai
ORDER
The present Civil Revision Petition has been filed against the fair
and decreetal order, dated 23.08.2022 in I.A.No.605 of 2021 in O.S.No.
660 of 2010 on the file of the Additional District Munsif, Madurai Town.
2. The petitioner is the first plaintiff in O.S.No.660 of 2010. The
said suit has been filed by the petitioner along with 8 other plaintiffs for
the following relief:
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C.R.P(MD)No.1070 of 2023
a) declaring that the plaintiffs are entitled to enjoy the right
of common pathway in the suit property shown as ABCD in the
plaint sketch.
b) granting a permanent injunction restraining the
defendants 1 to 3 and their men and agents or successors from
obstructing the right of common pathway of the plaintiff in the
suit property either by putting up of fencing or any manner
whatsoever
c) directing the defendants to pay the plaintiffs the cost of
the suit and
d) granting such other and further reliefs as this Hon'ble
Court may deems fit and proper in the facts and circumstances of
the case; and thus render justice.
3. It appears that both the plaintiff and the defendants (Private
respondents herein) have purchased the property from the same vendor
and there is a dispute relating to the use of the land for pathway. The
eighth plaintiff was examined on behalf of the plaintiff as P.W.1. It is
informed that unfortunately after the chief examination was complete and
the eighth plaintiff was partly cross examined, the eighth plaintiff's son
has passed away. Therefore, the eighth plaintiff, who was being
examined on behalf of the plaintiff loss interest and was not co-operating
in the trial before the District Munsif Court, Madurai Town in O.S.No.
660 of 2010.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1070 of 2023
4. Under these circumstances, the petitioners have filed I.A.No.605
of 2021 to restore deposition of P.W.1 and to permit the petitioner to let
in evidence on behalf of the petitioner/plaintiff. The relevant portion of
the order reads as under:
"5.5. Further this court also relied the judgment of
Honourable High court in D.F. Philips Vs. Dhamayanth
reported in CDJ 2010 MHC 1572, in which the Hourable High
Court held in para 28 that, "There is no provision for
eschewing the incomplete evidence of a witness. The
evidentiary value or probative value of such evidence is a
matter to be considered by the trial Court, Situations would
arise where on account of the less favourable answers given in
the initial stage of cross examination, the witness may avoid
the box on subsequent occasions. In such circumstances, the
trial Court is justified in forming an opinion about the
probative value of such evidence in the peculiar factual back
ground. In all cases where there was no deliberate attempt on
the part of the witness to avoid cross examination, it cannot be
said that the entire evidence has to be eschewed from the
consideration. It is always possible for the Court to examine
all the surrounding circumstances leading to the avoidance of
further cross examination and to come to a definite conclusion
as to whether it was deliberate act on the part of the witness.
Hence this court considers mere reason that the
petitioner is unable to depose before this court for further
cross examination is not a ground for eschewing his evidence.
This court considers that the petitioner has not filed this
petition with satisfactory reason and it is devoid of merit.
In the result this petition is dismissed. No Cost."
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C.R.P(MD)No.1070 of 2023
5. A reading of the above reason indicates that the petitioner
cannot have any objection as the Additional District Munsif Court has
followed the principles of law that the evidence of witness cannot be
eschewed. However, the impugned order does not preclude the petitioner
from producing any other witness to establish their case. Therefore,
while dismissing the present civil revision petition, I make it clear that on
the next date of hearing before the Additional District Munsif Court,
Madurai, the petitioner shall produce any other witness, who may be
examined on their behalf.
6. The present Civil Revision Petition stands dismissed with the
above observations. No costs. Consequently, connected miscellaneous
petition is closed.
27.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
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C.R.P(MD)No.1070 of 2023
To
1.The Additional District Munsif,
Madurai Town.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.1070 of 2023
C.SARAVANAN,J.
SN
C.R.P(MD)No.1070 of 2023
27.04.2023
https://www.mhc.tn.gov.in/judis
