G.Saminathan v. 1.Kalimuthu

Factual and Procedural Background

The Civil Revision Petition challenges the order dated 17.11.2017 passed in I.A.No.519 of 2017 in O.S.No.64 of 2011 before the Principal Subordinate Judge, Thanjavur. The suit in O.S.No.64 of 2011 involves a claim for partition and separate possession of a 5/6th share of the plaintiffs and the third defendant. The petitioner in the revision is the second defendant in the suit. The fourth defendant, originally examined as D.W.1, had his evidence eschewed by the trial court suo-motu due to his failure to appear for cross-examination. Subsequently, the fourth defendant filed an interlocutory application under Section 151 of the Code of Civil Procedure seeking permission to give evidence and appear for cross-examination. The second defendant opposed this application. The trial court, relying on a precedent, allowed the fourth defendant to depose further.

Legal Issues Presented

1. Whether the trial court had the power to permit the fourth defendant to give further evidence and appear for cross-examination after his evidence was initially eschewed for non-appearance.
2. Whether the trial court erred in allowing the fourth defendant to depose further based on the precedent that there is no provision for eschewing incomplete evidence of a witness.

Arguments of the Parties

Petitioner's Arguments (Second Defendant)

• The second defendant opposed the interlocutory application filed by the fourth defendant seeking to give further evidence and appear for cross-examination.

Fourth Defendant's Position

• The fourth defendant filed the interlocutory application under Section 151 CPC to be permitted to give evidence and appear for cross-examination despite earlier non-appearance.
• Filed a proof affidavit and marked Exhibits B.1 to B.4 in support of his evidence.
• Provided reasons for earlier non-appearance for cross-examination.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
2009 (4) TLNJ 217 (Civil) D.F.Philips Vs. Damayanthi Kailsam and others	There is no provision for eschewing the incomplete evidence of a witness; the evidentiary or probative value of such evidence is to be considered by the Trial Court.	The trial court applied this principle to allow the fourth defendant to depose further despite earlier non-appearance for cross-examination, which was upheld by the revisional court.

Court's Reasoning and Analysis

The court reasoned that in a partition suit, the trial court has the inherent power to grant further opportunity to a contesting defendant to lead evidence during the trial. The fourth defendant had provided a reason for his earlier non-appearance for cross-examination. The trial court, after analyzing the facts and circumstances, correctly applied the precedent that incomplete evidence cannot be eschewed outright but must be evaluated for its evidentiary value. Finding no perversity or illegality in the trial court’s order permitting the fourth defendant to depose further, the revisional court confirmed the order.

Holding and Implications

The Civil Revision Petition is dismissed and the order dated 17.11.2017 passed in I.A.No.519 of 2017 in O.S.No.64 of 2011 is confirmed.

The direct effect of this decision is that the fourth defendant is permitted to give further evidence and appear for cross-examination. No costs were awarded. The opinion does not establish any new precedent beyond affirming the trial court's discretion in allowing further evidence in the context of a partition suit.