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High Court of Judicature at Madras
SANJAY KISHAN KAUL & M. SATHYANARAYANAN, JJ.
S.V. Matha Prasad
Versus
Renuka Devi & Another
O.S.A. Nos. 127 & 128 of 2014
Decided on: 11-11-2014
Civil Procedure Code, 1908 - Order 18 - Rule 17 - Issue of further cross-examination - Letters of Administration - Respondent who is staying in Mysore entered witness box as P.W.1 and was examined before Additional Master-I - Counsel for second respondent/ first defendant concluded cross-examination whereafter counsel for appellant/ second defendant took adjournment for cross-examination of respondent no.1/ plaintiff - It appears that thereafter there was only a saga of adjournments though first respondent/ plaintiff appeared for cross-examination - Matter was adjourned to by Master cautioning that if cross-examination was not carried out on next date further testimony of other witnesses on behalf of first respondent/ plaintiff would be recorded - Counsel for appellant/ second defendant is stated to have refused to cross-examine first respondent/ plaintiff whereafter four more witnesses were examined on behalf of first respondent/ plaintiff being P.Ws.2 to 5 - Their evidence was concluded and it has been stated that cross-examination was carried out only by counsel for second respondent/ first defendant while counsel for appellant/ second defendant only adopted that cross-examination – Held, First respondent/ plaintiff did seek further cross-examination and one more document was produced in that process - Whether such permission ought to have been granted or not is a issue no more open as exercise of discretion by Single Judge was upheld even by Division Bench –Court fail to appreciate plea of parity on this account because first respondent/ plaintiff was permitted to further cross-examination of appellant/ second defendant in which process one more document was exhibited appellant/ second defendant should be given an opportunity to cross-examine first respondent/ plaintiff as P.W.1 qua all documents produced by first respondent/ plaintiff during cross-examination of appellant/ second defendant - Each party has to prove his own case or leads his own defence - As observed by Honble Supreme Court in aforesaid two judgments objective cannot be to fill in lacunae and gaps in evidence by this exercise - It is not a case where Court has felt handicapped and needs any elucidation - These documents pertain to appellant/ second defendant - They are matters of legal proceedings - Appellant/ second defendant has not been caught by surprise – Thus appellant/ second defendant at this stage cannot be permitted to cross-examine first respondent/ plaintiff as P.W.1 - It is on completion of trial that belatedly prayer was made by appellant/ second defendant - It is at a stage where even evidence of defendants is over and in fact applications were filed post adjournment of suit for final hearing on a date agreed to by counsel for parties - Appeals are completely meritless and impugned order of Single Judge is unexceptional - Court may note another aspect to matter arising from plea of Senior Counsel for appellant that appellant had also moved an application seeking dismissal of petition for grant of Letters of Administration on ground of bar of limitation but no order has been passed on that application - What is prayed for is a direction that said application must be decided first – Order accordingly
1. Late Thiru.S.V.Ramakrishnan (Testator) is alleged to have executed a Will dated 15.07.1970 and the first respondent before us (original plaintiff) filed a petition on 18.12.2006 for grant of Letters of Administration in respect of the said Will, 26 years after the death of the Testator, who passed away on 31.12.1980. The Testator was married to one Rajalakshmi, the mother of the appellant (original second defendant), who passed away in March, 1952. There were two children born from their marriage, the appellant/ second defendant and respondent no.2/ first defendant. It appears that the Testator started living with the sister of Rajalakshmi, Smt.Saroja and the Union produced three daughters and a son. Respondent no.1 is one of the daughters. The petition was opposed by appellant/ second defendant and respondent no.2/ first defendant.
2. Respondent no.1/ plaintiff, who is staying in Mysore, entered the witness box as P.W.1 and was examined before the Additional Master-I on 26.08.2010. The counsel for the second respondent/ first defendant concluded the cross-examination on 02.12.2010, whereafter the counsel for the appellant/ second defendant took adjournment for cross-examination of respondent no.1/ plaintiff. It appears that thereafter there was only a saga of adjournments, though the first respondent/ plaintiff appeared for cross-examination on 13.12.2010, 14.12.2010, 16.12.2010, 21.12.2010 and 05.01.2011. The matter was adjourned to 18.01.2011 by the learned Master cautioning that if cross-examination was not carried out on the next date, further testimony of other witnesses on behalf of the first respondent/ plaintiff would be recorded. On 18.01.2011 also, the counsel for the appellant/ second defendant is stated to have refused to cross-examine the first respondent/ plaintiff, whereafter four more witnesses were examined on behalf of first respondent/ plaintiff, being P.Ws.2 to 5. Their evidence was concluded on 13.06.2011 and it has been stated that the cross-examination was carried out only by the counsel for the second respondent/ first defendant, while the counsel for the appellant/ second defendant only adopted that cross-examination.
3. It appears that the cross-examination on behalf of the first respondent/ plaintiff of the appellant/ second defendant, who appeared in the witness box as D.W.2, was completed on 11.02.2013 and 32 documents were exhibited during that cross-examination by confronting D.W.2, who admitted those documents. However, the first respondent/ plaintiff filed applications for recall of the appellant/ second defendant for further cross-examination, which were contested by the appellant/ second defendant. The applications were, however, allowed on 21.11.2013 by the learned Single Judge and the appeals against the same were dismissed by the Division Bench on 06.02.2014. The sequitur was that the appellant again appeared for cross-examination and was confronted with one more document, which was exhibited as P-78. The evidence of defendants, thus, stood concluded on that date.
4. The appellant, thereafter, filed two applications bearing No.2565 and 2566 of 2014 on 09.04.2014 for recall and re-opening of the evidence of the first respondent/ plaintiff with further opportunity to cross-examine her in respect of the documents exhibited in the cross-examination of the appellant/ second defendant. It is the say of the appellant/ second defendant that before he could make the said applications, the first respondent/ plaintiff had moved the applications, which were contested by the appellant/ second defendant. The appellant/ second defendant pleaded parity with the first respondent/ plaintiff on the issue of further cross-examination. These applications were opposed by the first respondent/ plaintiff.
5. The learned Single Judge, vide the impugned order dated 15.04.2014, dismissed the applications filed by the appellant/ second defendant, aggrieved by which, the present appeals have been filed.
6.
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