A party cannot cross-examine and then seek to dismiss the resulting evidence; however, they may file additional affidavits to address new allegations.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01-07-2025 CORAM THE HONOURABLE MR.JUSTICE P.B. BALAJI CRP No. 5143 of 2024 and CMP.No.28836 of 2024 S.Vignesh S/o.K.Sekar, Door No.738,Thervazhi Village and post, Gummidioondi Taluk, Tiruvallur District, Chennai -601 201.

Petitioner Vs

1.G.Gnanamoorthy S/o. Late Govinda Raji Rddiar No.628(A), Mettu Street, Thervazhi Village and Post, Gummidipondi Taluk, Tiruvallur District.

2.G.Dhatchinamoorthy, S/o. Late Govinda Raji Rddiar No.628(A), Mettu Street, Thervazhi Village and Post, Gummidipondi Taluk, Tiruvallur District.

Respondents PRAYER This Civil Revision Petition is filed under Article 227 of the Constitution of India , against the order passed by the District Munsiff cum Judicial Magistrate at Gummidipoondi in I.A.No.03/2004 in OS.NO.10/2022 dated 05.11.2024.

For Petitioner: Mr.X.Selvam Sounder For Respondents: Mr.A.Vinayagaperumal

ORDER

The plaintiff aggrieved by the order of the Trial Court in I.A.No.3/2024 in O.S.No.10/2022, has come forward with the present revision. The said application was taken out to eschew the evidence of PW.1 which was recorded subsequent to the ex parte decree being set aside but based on a proof affidavit, which was filed by the plaintiff at the stage of the defendants having been set ex parte.

2. The learned counsel for the petitioner would therefore state that the petitioner ought to have been given an opportunity to file a fresh proof affidavit, and the defendant should not have been permitted to cross-examine PW.1 based on the earlier proof affidavit, which was filed at the stage when the written statement itself was not taken on file. He would therefore pray that the order passed by the trial Court be set aside.

3. Per contra, the learned counsel for the respondent would state that though initially the defendant was set exparte and the suit also was decreed in favour of the plaintiff, based on the proof affidavit that was filed by the plaintiff and the suit documents being marked, subsequently the defendant took out an application to set aside the exparte decree and also chose to file written statement along with the said application and the same came to be allowed. According to him, thereafter the defendant has also cross examined PW.1 at length and having submitted himself for cross examination, the plaintiff cannot thereafter turn around and seek to eschew the said evidence that has already come on record.

4. I have carefully considered the submissions advanced by the learned counsels on either side and have also gone through the order passed by the trial Court.

5. No doubt, the defendant was initially set ex parte, and at the time of ex-

parte evidence, being recorded the plaintiff had chosen to file a proof affidavit and also marked documents. Based on the said proof affidavit and the documents that have been exhibited by the plaintiff, the suit came to be decreed ex-parte. Subsequently, the defendant has sought to set aside the said ex-parte decree and also filed a written statement along with the said set aside application. The said application came to be allowed and thereafter the case proceeded from the stage where it was left, namely the cross-examination of PW.1.

6. PW.1 submitted himself to elaborate cross-examination at the hands of the counsel for the defendant. Thereafter, he has taken out I.A. No.3/2024 seeking to eschew the evidence that has been adduced by PW1 on the ground that the proof affidavit on which the cross-examination was permitted was filed before the filing of the written statement. Unfortunately, the plaintiff ought not to have permitted cross-examination by the defendant and instead, should have insisted on filing a fresh additional proof affidav