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2022 Supreme(Online)(MAD) 13426
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22.07.2022 CORAM THE HONOURABLE Mrs. JUSTICE J.NISHA BANU C.R.P.(PD)No.2913 of 2016 and C.M.P.No.14876 of 2016 Vibushnan, S/o Vediyappa Gounder, Vanniyar by caste (Rep. by Thalaiyuthu Village, Vediyappan Koil Dharmakartha)
Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District. .... Petitioner vs
1. The District Collector, Tiruvannamalai District, Tiruvannamalai.
2.The Additional Collector (Panchayat), Tiruvannamalai. 3. The Tahsildar, Chengam.
4. The Block Development Officer, Thukkapettai, Chengam.
5. The President, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
6. Subramani S/o.Chinniya Gounder, Ex.President Thalaiyouth Village Arattavadi Post Chengam Taluk, Tiruvannamalai Dist.
7. Nataraja Boopathy S/o.Venkatraman, Ex.President, Thalaiyouth Village Arattavadi Post, Chengam Taluk Tiruvannamalai Dist
8. Saroja W/o.Nataraja Boopathy, Thalaiyouth Village Arattavadi Post Chengam Taluk Tiruvannamalai Dist
9. Nanki Moorthy W/o.Moorthy Poyampalli Thanda H/o. Thalaiyuth Village Arattavadi Post, Chengam Taluk, Tiruvannamalai District.
10. Elumalai S/o.Thangavel, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
11. Chakkarapani S/o.Kaveri, Thalaiyuthu Village, Chengam Taluk , Tiruvannamalai District.
12. Chennappan S/o.Dhanapal, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
13. Venkataraman, S/o.Pattu Gounder, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District
14. Rajakulasekarapandiyan, S/o.Gopalakrishnan, Thalaiyuthu Village Chengam Taluk Tiruvannamalai District.
15. Jayaraman S/o.Gopal, Thalaiyuthu Village Chengam Taluk Tiruvannamalai District.
16. Venkatraman S/o.Munnusamy Thalaiyuthu Village Chengam Taluk, Tiruvannamalai District/
17. Muthan S/o.Annamalai Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
18. Kannan, S/o.Kulandai Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
19. Jayakodi S/o.Chinnasamy Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
20. Annamalai S/o.Anguthi Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
21. Krishnan S/o.Ponmudi Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
22. Krishnan S/o.Annamalai, Thalaiyuthu Village Chengam Taluk , Tiruvannamalai Distroct/
23. Kaathan, S/o.Chinakannan Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District/
24. Muniyanathan, S/o.Kuppusamy, Thalaiyuthu Village, Chengam Taluk , Tiruvannamalai District.
25. Venkatesan, S/o.Dhanapal Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
26. Settu, S/o.Govindasamy Thalaiyuthu Village, Chengam Taluk Tiruvannamalai District. 27. Kasi S/o.Munusamy Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
28. Elumalai, Thalaiyuthu Village Chengam Taluk , Tiruvannamalai District.
29. Lakshmanan, S/o Papan, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
30. Gopal, S/o Chinnasamy, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
31. Arumugam, S/o.Kuppa Gounder Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
32. Venkataraman, S/o Kesavan Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
33. Pichaikaran, S/o Sandhu, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
34. Rajarathinam, S/o Ramasamy Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
35. Govindan, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
36. Venkatachalam, S/o.Pattu Gounder Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
37. Suresh, S/o.Velayutham Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
38. Ravi, S/o Pathiya, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
39. Arjunan, S/o Munusamy, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
40. Boopathy, S.o Subramani , Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
41. Vanpathy, s/o Subramaniyan, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District.
42. Settu, S/o Kevari, Thalaiyuthu Village, Chengam Taluk, Tiruvannamalai District. ....Respondents Civil Revision Petition filed under Section 115 of Civil Procedure Code against the fair and decreetal order dated 28.03.2015 passed in I.A.No.372 of 2015 in O.S.No.154 of 2008 on the file of the Additional District Munsif Court, Chengam. For Petitioner : Mr.P.Mani For respondents : Mr.E.Indhumathi, Government Advocate for R1 to R4 No appearance for R5 No appearance for R9
O R D E R
This Civil Revision Petition has been filed as against the fair and decreetal order dated 28.03.2015 passed in I.A.No.372 of 2015 in O.S.No.154 of 2008 on the file of the Additional District Munsif Court, Chengam.
2. The brief facts of the case of the petitioner is as follows:
i) The petitioner/plaintiff has filed a suit for declaration of title and for permanent injunction against the respondents/defendants. Written statements were filed. The trial commenced and the case was posted for defendants' side evidence on 09.07.2014 and DW4 was present in Court and the defendants' side witness was examined in chief, but the petitioner/plaintiff side did not cross examine the defendant. On that day, the petitioner was present in Court but the advocate for the petitioner was not present as he was conducting another case in District Court Tiruvannamali, so the petitioner was unable to cross examine DW4. The Court suo moto closed the evidence in respect of DW4. Thereafter, the petitioner filed a petition to reopen and recall the evidence of DW4 in I.A.Nos. 577 and 578/2014 and the same was allowed on payment of cost of Rs.500/- in each petition. Thereafter, DW4 was served. DW4 was working as a Temple Inspector. On 17.12.2014, when the case was posted for cross examination of DW4, DW4's office staff came to Court and stated that DW4 was suspended from the Department. Therefore, the case was posted for further proceedings on 07.01.2015. The Court observed that the suspended inspector cannot be recalled for cross examination and if the plaintiff's counsel wishes to take evidence of HR&CE Inspector, he has to pay batta to the present HR&CE Inspector and posted the matter on 22.01.2015. The petitioner paid witness batta for DW4 and on 07.04.2014, DW4 was served and was present before the Court. But the Court did not allow the petitioner to cross examine DW4. The Court observed that whenever a Government servant was suspended, he is precluded from his official duty and that he does not have authority to appear as witness and give evidence and posted the matter for further witness on 2.6.2015. But according to the petitioner, as per the Evidence Act, whenever a witness was examined in chief, he should be crossed by the other side. If permission was not given to cross examine DW4, then the evidence of DW4 has to be scraped or eschewed. If DW4's chief evidence was scraped by the Court, no prejudice would be caused to the other side. If it is not done so, the petitioner will incur heavy loss and hardship.
ii) The said petition was dismissed by the Court below stating that there is no provision for eschewing the incomplete evidence of witness and merely for avoiding further cross examination, it cannot be said that the entire evidence has to be eschewed from consideration and directed that the evidence of DW4 be on record and the circumstances be noted as to why he was not cross examined. Aggrieved by the said order, this Civil Revision Petition has been filed by the petitioner/plaintiff.
3. Heard the learned counsel for the petitioner, the learned Government Advocate appearing for the 1st to 4th respondents and perused the materials available on record.
4. Learned counsel for the petitioner would submit that DW4 was examined in chief and in the course of cross examination, he has been suspended and as such, he has to be cross examined with respect to his evidence in chief.
5. Learned Government Advocate appearing for the respondents 1 to 4 would submit that DW4's suspension order was revoked and the said HR&CE Inspector is on duty.
6. Under such circumstance, this Court is of the opinion that since the suspension order of DW4 was revoked, there will not be any impediment for the petitioner to cross examine DW4-Inspector. Therefore, the petitioner is permitted to cross examine DW.4. Accordingly, the Civil Revision Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
22.07.2022 Index:Yes/No Speaking/Non-spe
