The court has the discretion to examine witnesses as court witnesses under Order 16, Rule 14, CPC and Section 165 of the Evidence Act to obtain all the relevant evidence necessary to come to a just and correct decision.

1. C.R.P. No. 36 of 1982 is directed against the judgment of the learned Subordinate Judge of Tiruvannamalai in A.S. No. 52 of 1981, returning the appeal memorandum for representation before proper forum as that court had no jurisdiction to entertain the appeal.

2. C.R.P. No. 4262 of 1982 is filed by the plaintiff in O.S. No. 1437 of 1978 on the file of the District Munsif of Tiruvannamalai challenging the dismissal of his suit.

3. In the instant case, the younger brother of the executant, Renu Chetty (D.W. 1) had not been called as a witness by the plaintiff. It is submitted by Mr. R.S. Venkatachari that the courts below have actually dealt with this aspect and it is not as if both the courts below have not exercised their discretion. He submits that once a discretion has been exercised by the lower court it is not open to this Court to direct the lower court to call for a witness, who may be the party to a document as an attestor, and examine him as a court witness by exercising the power under S. 165 of the Evidence Act or under O. 16. R. 14, C.P.C. In this view, he also brings to the notice of this Court the decisions in Agha Mir Ahmed v. Mudassir Shah 1 . Sarabai Agarwalla v. Haradha Mohapatra 2 and Municipal Corporation of Greater Bombay v. Lala Panchan 3 . The learned counsel for the revision petitioner would rely on this particular aspect of non-exmination of one of the attestors who is alive, so far as the revision petitioner is concerned, due to the fact that the said attestor is related to the executant of the promissory note as younger brother and as such there is nothing strange in the plaintiff in not examining him as a witness on his behalf. Another witness to this promissory note, Ex. A1 is dead. The scribe of the promissory note has been described by the plaintiff, P.W. 1, as one who is inimically disposed towards him. It is no doubt true that under S. 118-A of the Negotiable Instruments Act, the presumption is that when once execution of a promissory note is admitted thereafter the burden is on the defendant to prove that he has not received consideration under the negotiable instrument. In the instant case, it is submitted that the contention raised even in the written statement filed was that certain signatures were put by the defendant on stamps and that had been utilised by the plaintiff herein to fill up the upper blank portion and create Ex. A1 in the instant case. It is in this document it is relevant to note that the younger brother, Govindan is found as an attestor. It is not clear from the evidence whether the said signature of Govindan is also disputed as one that had been put in the document, when as per the defendant the upper portion or the recital portion of Ex. A1 was not available in a blank paper as alleged by him. When another attestor to the document is dead and when it is admitted by either side that Govindan, who is related to the defendant as his younger brother is alive, justice requires that the said Govindan has to be examined as a witness. When both sides have not chosen to examine him and the plaintiff has also given a reason that in as much as he is interested in the defendant and so he cannot be examined on his behalf, the question that confronts this Court is whether both the courts below exercised their discretion as per O. 16, R. 14, C.P.C.

4. It is also relevant to note that S. 165 of the Evidence Act clothes the court with the power of questioning the witnesses regarding the several aspects that may be actually exhibited at the time of the scrutiny of the document. As such Ex. A1 in the instant case, had been properly considered in this case. It is seen that the only witness alive, namely Govindan, who is the younger brother of the executant, has not been examined. Though a reason had been offered by the plaintiff as P.W. 1 that as Govinda n is related to the executant as his younger brother he has not been called as a witness, yet when both sides have failed to ex