C.R.P.(PD).No.3565 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 25.08.2023

CORAM:

THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN

C.R.P.(PD).No.3565 of 2019

and C.M.P.No.23373 of 2019

R.Muthukrishnan

... Petitioner

Vs.

Girija

... Respondent

PRAYER: Civil Revision Petition is filed under Article 227 of the

Constitution of India, against the order and decreetal order dated

06.03.2019 passed in I.A.No.10978 of 2018 in O.S.No.5862 of 2016 on

the file of the III Additional City Civil Court, Chennai.

For Petitioner

: Ms.R.V.Gayatri

For Respondent

: Mr.G.V.Sridharan

ORDER

This Civil Revision Petition arises against an order passed in

I.A.No.10978 of 2018 in O.S.No.5862 of 2016 on the file of the learned

1/5

https://www.mhc.tn.gov.in/judis

C.R.P.(PD).No.3565 of 2019

III Additional City Civil Court, Chennai.

2.The plaintiff had filed a suit for permanent injunction restraining

the defendant, his men, agents, servants, representatives or anyone acting

on his behalf from anyway interfering with her peaceful possession and

enjoyment of the suit schedule 'B' mentioned property and to pay

damages for use and occupation of the plaint 'A' Schedule property.

3.Pending the suit, the plaintiff gave power of attorney to one

Perumal to depose on her behalf before the Court. According to the

plaintiff, since she was sick and unable to come to the Court, she was

constrained to appoint a power of attorney. The power of attorney

entered the witness box and was also cross-examined by the defendant's

counsel. Half way through the cross-examination, the power of attorney

refused to enter the witness box, allegedly on the ground of threat and

coercion by the defendant. Therefore, the plaintiff took out I.A.No.10978

of 2018 to eschew the evidence. The application found merit by the

learned trial Judge and it was allowed. Against which, the defendant is

before me.

2/5

https://www.mhc.tn.gov.in/judis

C.R.P.(PD).No.3565 of 2019

4.The fact that the plaintiff appointed a power of attorney is not in

dispute. The fact that the power of attorney also deposed in Full in Chief

Examination and was cross-examined part is also not in dispute. There is

also no dispute that the power of attorney was and is unwilling to enter

the witness box. The evidence of a party can be eschewed, if he had

deposed in chief and does not present himself for cross-examination.

5.However, in this case, apart from the deposition in chief, he was

also cross-examined by the learned counsel for the defendant and

thereafter he did not entered the witness box. If the evidence is eschewed

today, whatever admissions or concessions that the defendant would have

extracted from the power of attorney would also be erased from the

record.

6.The power to eschew does not permit the Court to eschew

evidence which has gone partly or otherwise in favour of one party of the

other.

7.Mr.G.V.Sridharan, learned counsel appearing for the plaintiff

would submit that he now intends to take out an application for

3/5

https://www.mhc.tn.gov.in/judis

C.R.P.(PD).No.3565 of 2019

appointment of an Advocate Commissioner to examine the plaintiff

herself as she is sick. It is always open to him to take that course of

action since the power of attorney has refused to come to Court.

However, that does not mean, the evidence already deposed on her behalf

by her duly constituted power of attorney can be eschewed.

8.Consequently, the civil revision petition is allowed. The order

eschewing the evidence of P.W.1 in I.A.No.10978 of 2018 dated

06.03.2019 is set aside. The evidence shall form part of the record. It is

open to the plaintiff to examine herself by way of an Advocate

Commissioner. It is left open to the defendant to argue that the principal

cannot examine herself as the power of attorney has already been

examined. No