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2009 Supreme(Mad) 150
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Selvamony
Versus
M. Mercy Roselt
C.R.P.(PD)No.2969 of 2008 and M.P.No.1 of 2008
decided on 19-01-2009
For the Petitioner:S.K. Rakhunathan, Advocate.
For the Respondent:G. Thangavel, Advocate.
The importance of factual determination in allowing the examination of a witness and the potential impact on the evidentiary value of the witness's deposition.
Headnote:
Witness Examination - Civil Revision - The court allowed the examination of a witness despite objections, emphasizing the importance of factual determination in such matters and citing relevant case law to support its decision.
Fact of the Case:
The plaintiff filed a suit for recovery of money against the defendant. During trial, the defendant objected to the examination of a witness, David, who was present during the cross-examination of the plaintiff's witness.
Finding of the Court:
The court held that it could not conclusively determine whether the witness was present during the cross-examination, but emphasized the importance of factual determination. It allowed the examination of the witness, stating that the evidentiary value of the witness's deposition would be reduced if it was established that he was present during the cross-examination.
Issues: The main issue was whether the witness, David, should be allowed to be examined despite objections from the defendant.
Ratio Decidendi: The court emphasized the importance of factual determination in such matters and cited relevant case law to support its decision to allow the examination of the witness.
Final Decision: The civil revision petition was disposed of, allowing the examination of the witness. No costs were awarded, and the connected miscellaneous petition was closed.
Animadverting upon the order dated 08.07.2008 passed by the learned III Asst. City Civil Judge, Chennai, in I.A.No.10437 of 2007 in O.S.No.939 of 2004, this civil revision petition is focussed.
2. Heard both sides.
3. The facts giving rise to filing of this revision as stood exposited from the records could be succinctly and precisely set out thus:
The respondent/plaintiff filed the suit for recovery of money as against the revision petitioner/defendant herein. During trial, the plaintiff examined herself as P.W.1 and cross examined on various dates. According to the petitioner/defendant during cross examination of P.W.1, the plaintiffs witness namely one David was present in the Court hall on 26.06.2007. After completion of the cross examination of P.W.1, when David was sought to be put into box for being examined as a witness on the plaintiffs side, the learned counsel for the defendant objected to it. According to the revision petitioner, the learned Judge remarked thus:
".... And requested before this Honble Court to note down the name of the attesting witness and not permit him to give evidence. This Honble Court also stated that, now it is not necessary to note down the name of the attesting witness, while seeing the face itself we can make out. If the witness came to the next hearing asked to mention the same. And this Honble Court has adjourned the matter on 04.07.2007. On 04.07.2007 the same attesting witness Mr.David came and tried to depose the evidence. Immediately the same was brought into the knowledge of this Honble Court and I have filed the above said application."
4. The defendant filed I.A.No.10437 of 2007 to disqualify the witness from being examined as a witness in this case. Meanwhile, there was change of incumbency in the post of Presiding Officer of that Court and the successor passed order negativing the contention of the revision petitioner/defendant herein. Being aggrieved by and dissatisfied with the order of the lower Court, this revision has been filed on various grounds.
5. The learned counsel for the defendant would submit that the witness David who heard the cross examination of P.W.1 is disqualified from being examined as witness. But the trial Court was of the opinion that he might not have heard the full cross examination as cross examination was held on three days and on the last day, so to say on 26.06.2007 no significant cross examination might have been conducted etc.
6. The learned counsel for the revision petitioner also cited the decision of the Kerala High Court reported in AIR 1966 KERALA 316 [Dr.Kasi Iyer v. State of Kerala]. An excerpt from it would run thus:
"5.I respectfully agree with the view expressed in these cases and hold that to ensure a fair trial even in the absence of any specific provision in any enactment the Court has inherent power to order that no witness who has to give evidence should be present when the deposition of the other witnesses are being taken until he himself is examined as a witness.
6. In Lalmani v. Bejai Ram, AIR 1934 All 840, Bennet, J., held that the universal practice in the Courts in India is that witnesses should be called in one by one and that no witness who is to give evidence should be present when the deposition of a previous witness is being taken and a breach of this rule may well be termed an abuse of the process of the Court and, therefore, under S.151, C.P.C. the Court has inherent power to prevent that abuse and the Court can order that such witness should not be heard as a witness...."
Accordingly he prays to disqualify David from being examined as witness.
7. Whereas the learned counsel for the respondent/plaintiff would submit that the counter was filed in I.A. to the effect that witness David was sitting outside the Court and not inside the Court; the said witness attested the pronote and hence his cross examination is very much required.
8. Considering the pro et contra, I am of the considered opinion that in
