Common Order:
These revisions are directed against the order dated 27.11.2007 in I.A.Nos.648 of 2007 and 658 of 2007 in O.S.No.386 of 2004 on the file of the learned Additional District Judge, (FTC-1) whereby and whereunder the application filed by the first respondent to reject the proof affidavit of D.W.1 and to proceed in accordance with law after eschewing evidence of D.W.1 was allowed (I.A.No.658 of 2007) and the application filed by the revision petitioner to direct the respondents to cross examine the witness Vishnudas as D.W.2 was dismissed. (I.A.No.648 of 2007).
2. The facts:
The suit in O.S.No.210 of 1997 was filed by the first respondent before the Subordinate Judge, Chengalpat which subsequently renumbered as O.S.No.386 of 2004 on the file of the Additional District Judge, (F.T.C.No.1) Chengalpat.
3. The suit was instituted by the first respondent praying for a judgment and Decree to partition the suit property into six shares and for allotment of one such share to her and for other consequential reliefs.
4. In the suit in O.S.No.210 of 1997, it was the contention of the first respondent that her father Mr. R.N. Philips, the husband of the petitioner herein and the father of respondents 2 to 4 was an ex-service man and he occupied various positions in the government and the after superannuation, he made a sizeable amount by way of wise investment. Late R.N. Philips purchased substantial property in and around Chennai and he has also made investment in the capital gain units and he also purchased gold and silver wares. However, the health condition of the common ancestor deteriorated day by day and in 1989, he had a fall and his hip bone was broken. Since 1988, his mental faculties had also been impaired and at that point of time, the third respondent exploited him by making use of his helpless situation. Subsequently, Mr. Philips died on 20.10.1992.
5. While so, the first respondent came to know that proceedings had been initiated before the High Court of Madras for grant of letters of administration in respect of a Will stated to have been executed on 8.5.1989 by the deceased Philips. The said Will was fabricated and as such, the first respondent objected to the grant of letters of administration and the petition was dismissed for default on 21.7.1994. Even though the petition was restored subsequently, the revision petitioner as per her application in A.No.3884 of 1996 requested the Court to return the original Will as she was no more interested in prosecuting the application for Letters of Administration. However, even after dismissal of the petition, there was no attempt made by the co-owners to render accounts of the property as well as its income which made the first respondent to file the suit for partition.
6. The suit was contested by the revision petitioner as well as the other respondents. In the written statement filed by the revision petitioner as first defendant, it was her contention that the property was purchased by her husband with the money contributed by her and as such, her deceased husband was not the sole owner of the property. According to her, she alone was in possession of the property and the plea of joint possession was made up only for the purpose of payment of lesser Court fee. The revision petitioner also denied the claim made by the first respondent in respect of the suit property as according to her, she was entitled to half share in all the properties left by the deceased Philips and 1/5 share in the other half of the property being the legal heir of the deceased. Accordingly, she prayed for dismissal of the suit.
7. The matter was taken up for trial and in order to examine her on commission, revision petitioner filed an application before the trial Court. The said application was allowed and an Advocate Commissioner was appointed to record her evidence. The revision petitioner was examined on commission as D.W.1 on 17.3.2007 and she was subsequently cross examined on 13.4.2007 and B-1 to B-18 were marked as exhibits. The matter was reposted on 22.4.2007 for further cross examination. On 22.4.2007, a medical certificate was produced on behalf of the revision petitioner/first defendant stating that she was advised bed rest and as such, she was not in a position to be present for cross examination. The counsel for the revision petitioner informed the Advocate Commissioner that since she needed almost a month s time to recover from her illness, the matter has to be adjourned after summer holidays. Accordingly, the cross examination was adjourned to be taken up on 9.6.2007. Since 9.6.2007 was declared a working day, the matter was reposted to 16.6.2007. However, on 14.6.2007, the counsel for the petitioner produced a medical certificate to the effect that D.W.1 was not in a position to move about and as such, it was not possible for her to present herself for cross examination on 16.6.2007. The counsel also informed the Advocate Commissioner that he was not aware as to when she would recover and be able to be present for further cross-examination.
8. Since the revision petitioner was evading further cross examination, the Commissioner found that there was no point in keeping the warrant with him and accordingly, he submitted his report along with the evidence of D.W.1 so far recorded by him. The report filed by Thiru. A. Thanikachalam (District Judge, retired), clearly shows the adjournments granted to cross examine D.W.1 and the plea taken by her for the purpose of postponing her cross examination.
9. Subsequently; the first respondent filed an application in I.A.No.648 of 2007 with a prayer to reject the proof affidavit of D.W.2, as according to her, unless the evidence of D.W.1 was eschewed, it was not possible to examine D.W.2 as a witness. Therefore, the respondent prayed for eschewing the evidence of D.W.1 and to proceed further in accordance with law.
10. The revision petitioner filed an application in I.A.No.658 of 2007 to direct the first respondent as well as respondents 2 to 4 to cross examine her witness by name Mr. Vishnu Das D.W.2.
11. In the affidavit filed in support of the application in I.A.No.648 of 2007 the first respondent has contended that on account of the report submitted by the Advocate Commissioner appointed for the purpose of recording the evidence of D.W.1 and as her evidence was not complete and the original Will etc. are not available in the Court, the contesting witness to the Will cannot be examined as a witness and accordingly, prayed for rejecting the proof affidavit of D.W.2 and to eschew the evidence tendered by D.W.1.
12. In the counter filed in answer to the contentions raised in I.A.No.648 of 2007, the revision petitioner contended that the counsel for the first respondent objected to the marking of Exhibit B-5 Will on the ground that the Will has not been probated. However, the Will was allowed to be marked after recording the objection. It was her contention that she was not in a position to appear before the Commissioner for the purpose of further cross examination due to her illness and old age and as such, she should be permitted to examine the second witness as D.W.2. It was her further contention that there was no provision to eschew the evidence recorded by the Court and as such, the application was liable to be dismissed.
13. The petitioner also filed an application in I.A.No.658 of 2007 to direct the respondent herein to cross examine her witness Mr. Vishnudas as D.W.2.
14. In the counter affidavit filed by the first respondent in I.A.No.658 of 2007, it was contended that since the evidence of D.W.1 was not completed in the manner know to law, the same was liable to be eschewed and as such, D.W.2 cannot be examined in support of an incomplete evidence tendered by D.W.2 and that too involving a Will. Accordingly, the first respondent prayed for dismissal of the application.
Disposal by the Trial Judge:
15. The learned Trial Judge considered the issue in the light of the report submitted by the Advocate Commissioner.
16. The learned Trial Judge found that there was no possibility of completion of the cross examination of D.W.1 on account of her old age and ill health and she was also not prepared to appear before the Commissioner for cross examination. The learned judge also found that the evidence of D.W.1 was nothing but incomplete evidence and as there was no possibility of further cross examination of D.W.1, the learned Trial Judge was of the view that there was no other option than to eschew her evidence. Accordingly, the application in I.A. No.648 of 2007 was allowed.
17. While considering the application in I.A.No.658 of 2007, the trial Court observed that the documents marked through D.W.1 could be marked through D.W.2 and D.W.2 has to be treated as D.W.1. Accordingly, D.W.2 was permitted to be examined as D.W.1 and he was also permitted to mark the documents afresh though all the documents were marked through the first respondent.
18. The order in I.A. No.658 of 2007 is the subject matter in C.R.P.No.250 of 2008, Similarly, the order in I.A.No.648 of 2007 is the subject matter in C.R.P.No.3922 of 2007.
19. The learned senior counsel appearing on behalf of the revision petitioner contended that there is no provision in the Evidence Act to eschew the evidence tendered by a witness on account of her inability to subject herself for further cross examination. According to the learned senior counsel, the learned Trial Judge was not correct in eschewing the evidence of D.W.1 and the proper course would have been to consider the probative value of the evidence of D.W.1 during the time of disposal of the suit. It was further contended that the first respondent has cross examined the revision petitioner at length and as such, it cannot be said that no reliance could be placed on the evidence tendered by D.W.1. The learned senior counsel also relied on a judgment of Calcutta High Court in Dever Park Builders Pvt. Ltd. and Others v. Madhuri Jafan and Others AIR 2002 Calcutta 281 in support of his contention that there was no provision under law that if a witness was not cross examined either in full or part, his evidence would be rendered inadmissible. The learned counsel also placed reliance on the judgment in Mangal Sen v. Emperor, AIR 1929 Lahore 840.
20. The learned counsel appearing for the first respondent as well as the counsel appearing on behalf of the third respondent contended that the provisions of Indian Evidence Act and more particularly Section 138 clearly provides the order of examination of witnesses and in case a witness fails to subject herself for cross-examination, her evidence cannot be relied on to decide the matter and the only option available was to eschew her evidence.
21. According to the learned counsel, no reliance could be placed on the evidence of D.W.1 as it was net subjected to cross examination. The learned counsel relied on a judgment of the Honourable Supreme Court in Gopal Saran v. Satyanaryan AIR 1989 SC 1141: (1989) 3 SCC 56, in support of his contention that it is not safe to rely on the evidence of a witness who was not subjected to cross examination.
Debatable issue:
22. The point for consideration is as to whether the learned Trial Judge was justified in eschewing the evidence tendered by the revision petitioner As D.W.1 on the ground of partial cross-examination.
Concept of cross examination:
23. The main object of cross examination is to bring out the falsity and to find out the truth. Cross examination is an art. It would help the Court to assess the relative merits of the case projected by the parties. By observing and recording the demeanour of witnesses, it would be possible for the trial Court, to the extent possible, to evaluate the evidence and to come to a conclusion about the veracity of the witness.
The Law:
24. Section 138 of the Evidence Act prescribes the order of examination of a witness. Examination of a witness by a party calling him is known as examination in chief. The intention of examining a witness in chief is to project the case of the party on whose behalf he was examined. The Court was not expected to put leading questions during chief examination. Subsequent to the chief examination, it is the turn of the opposite party to cross examine the witness. Since attempt of the opposite party would be to discredit such witness with a view to substantiate their contention, the cross examiner is entitled to put questions with reference to the previous statements of such witnesses in writing as well as leading questions. The cross examiner is also entitled to put questions to the witness to test his veracity as well as trustworthiness. However, it was not possible to put indecent and scandalous questions or questions with the sole idea to insult or annoy the witness.
25. As a general rules, examination as well as cross examination has to be conducted in open Court. The issuance of a commission to examine a witness is only an exception and such step could be resorted to only in very exceptional circumstances on account of the proved difficulties of a witness. Such request cannot be granted as a matter of course or by mere asking.
26. In ordinary circumstances, evidence not tested by cross examination has no probative value. There should be an opportunity to the opposite party to cross examine the witness. Things would be different in case the opportunity to cross examine was not availed of by the opposite party. Evidence of a witness given in chief without subjecting such evidence for cross examination on account of death of the witness is also permissible. However, its probative value would be very little.
27. Similarly, question would arise as in the subject case, about the evidence receded inconclusive. The evidence recorded in cases where cross examination was not done completely cannot be discarded altogether. It all depends upon case to case and no uniform rule of general application could be made in such matters. In cases wherein cross examination was practically completed and the witness was not in a position to subject himself for further cross examination on account of illness or otherwise, or on account of other justifiable reasons, the probative value of such evidence has to be considered by the Court. Section 33 of the Evidence Act permits the evidence given by a witness in a judicial proceeding or a later stage of the very same judicial proceeding, the truth of the facts which was elicited during such examination, when the witness was dead or cannot be found or was incapable of giving evidence or in case the witness was kept out of the way by the adverse party. However, the proviso to the said Section also provides that the adverse party in the first proceeding must have the right and opportunity to cross examine him so as to use the evidence so tendered in the subsequent proceeding or in later stage of the same proceeding. Therefore, everything depends upon the peculiar facts of the said case. If the failure to face the further cross examination was involuntary, it stands in a different footing.
28. There is no provision for eschewing the incomplete evidence of a witness. The evidentiary value or probative value of such evidence is a matter to be considered by the trial Court, Situations would arise where on account of the less favourable answers given in the initial stage of cross examination, the witness may avoid the box on subsequent occasions. In such circumstances, the trial Court is justified in forming an opinion about the probative value of such evidence in the peculiar factual background. In all cases where there was no deliberate attempt on the part of the witness to avoid cross examination, evidence would be admissible but its probative value is a matter to be decided by the trial Court. Merely by avoiding further cross examination, it cannot be said that the entire evidence has to be eschewed from consideration. It is always possible for the Court to examine all the surrounding circumstances leading to the avoidance of further cross examination and to come to a definite conclusion as to whether it was deliberate act on the part of the witness.
29. In the case on hand, the Court has adopted a novel idea of eschewing the entire evidence on account of the incomplete cross examination of D.W.1. Such a course was no where prescribed in the Evidence Act and it has no sanction of law. Instead of eschewing the evidence, Court should have examined the conduct of the witness both pre and post recording evidence. However, without examination the probative value of the evidence, the Court has simply eschewed the evidence.
30. The learned counsel for the first respondent contended that DW-1 deliberately avoided further cross examination as she was afraid of answering questions with regard to the Will. According to the learned counsel, the fact that D.W.1 has filed an application later to examine D.W.2 as a witness on her side as well as her filing the civil revision petition before this Court are conclusive proof to show that she was hale and healthy to face cross examination and her attempt was only premeditated for the purpose of denying the respondents of an opportunity to test her trustworthiness. This is also a matter which could be considered by the trial Court while considering the probative value of the evidence tendered by D.W.1.
31. The evaluation of the evidence of a particular witness and its probative value are all matters to be considered and decided by the trial Court. However, the evidence so far tendered by a witness cannot be eschewed in the manner ordered by the learned Trial Judge.
32. While considering the evidence tendered by a witness whose cross examination was not completed on account of his failure to appear subsequently, the Court was require to look into the reasons meticulously. In case the Court was of the view that the witness has avoided the further cross examination without any reasonable cause or if he was cross examination fully, it would have shaken his trustworthiness, the Court was expected to consider the same while evaluating the probative value of the evidence tendered by the witness. The nature of the litigation and the issues involved in the suit are all important and integral part in the process of considering the probative value of the evidence recorded in part.
33. In Mangal Sen v. Emperor (supra), it was held that the evidence of a witness not cross examined is admissible and weightage to be attached to such evidence depends upon the circumstances of each case. In the said judgment, the learned judge has followed the judgment of this Court Kolhapur v. Sundaram Iyer AIR 1925 Madras 497.
34. In Dever Park Builders Pvt. Ltd. and Others v. Madhuri Jalan and Others (supra), a learned Judge of the Calcutta High Court considered similar issue with regard to the admissibility of the evidence of a person with unfinished cross examination and in the said factual context, the learned, judge observed thus:
10. In this case there is one and singular stage in the proceedings. Therefore, Section 33 of the Evidence Act will not all be helpful nor it is applicable here. The issue is whether the testimony of the deceased defendant with unfinished cross-examination will be admissible or be considered at the time of hearing or rendering judgment in this case or not. Under the provisions of Section 138 of the Evidence Act order of examination of witness is provided. It appears therefrom the witness shall be first examined in chief by the party who has called him and then if the adverse party so desires may reexamine. Upon careful reading of the said Section it would be apparent that the cross-examination is not a must nor as a matter, or without the same the evidence given in examination in chief cannot be rejected nor expunged. However, if the adverse party opts, for, certainly, the cross-examination is a must.
11. I find Madras High Court in case of Maharaja of Kolapur v. S. Sunderam Ayyar AIR 1925 Mad 497 held amongst other where witness was examined in chief, however, there was hardly any cross-examination and before it could be concluded the witness died. Still the unfinished testimony of the deceased witness was not rejected or held to be inadmissible. It was held amongst others there in at page 538 Column 1 that the evidence is admissible but the weight to be attached to such evidence should depend upon the circumstances of each case and that though in some cases the Court may act upon it, if there is either evidence on recorded, its probative value may be very small and may even be disregarded. In that case though the learned Judges did not attach any weight to the evidence of the deceased witness who was not cross-examined in full. However, the principle is very clear for guidance.
12. In a judgment of the Allahabad High Court in case of Ahmad Ali v. Joti Prasad AIR 1944 All 188 (2), it was held amongst other that there is certainly no provision in the Evidence Act that evidence of a witness who has been examined by the Court upon oath shall be excluded because it has not been possible for the other party to cross-examine him. Difference between getting evidence on the ground it is legally, inadmissible and ignoring it upon the ground that it should not be believed may often be of very little importance. But the distinction is important in principle because if the evidence is inadmissible the Court is not entitled to consider it at all, whereas if it is admissible the Court must decide on the circumstances of each case whether any weight should be attached to it or not.
35. In Gopal Saran v. Satyanarayan (supra), the issue was regarding the evidence of a witness who was not subjected to cross examination. In the said factual situation, the Honourable Supreme Court observed that it would not be safe to rely on the examination in chief recorded, which was not subjected to cross examination.
36. The finding recorded by the learned Trial Judge to the effect that the evidence tendered by D.W.1 cannot be accepted on account of her failure to subject herself for further cross examination has no legal sanction.
Disposal:
37. Therefore, I am of the view that the learned Trial Judge was not justified in eschewing the evidence of D.W.1 and directing D.W.2 to tender evidence as D.W.1 with an option to mark all the documents afresh though the same was marked through D.W.1.
38. In the result, the order dated 27.11.2007 in I.A.Nos 648 and 658 of 2007 in O.S.No.386 of 2004 are set aside.
39. The learned Trial Judge is directed to proceed with the trial by examining D.W.2 as well as the other witness if any, on the side of the defendants.
40. The suit is of the year 1997 and the revision petitioner is stated to be aged 93 years and as such, the learned Trial Judge is requested to take steps for an early disposal of the suit in O.S.No.386 of 2004 and preferably within three months from the date of receipt of a copy of this order.
41. The civil revision petitions are allowed with the above observation. No Costs. Consequently, M.P.No.1 of 2007 is closed.
Petitions allowed.
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