Amaladoss Stephen vs Seethalakshmi Ammal

Honourable Mr. Justice G. Rajasuria

Heard the learned counsel for both the parties. A thumb nail sketch of the germane facts which are necessary for the disposal of these civil revision petitions would run thus: The suit is of the year 2001 namely O.S.No. 985 of 2001, which was renumbered as O.S.No. 299 of 2004, which is one for recovery of possession of immovable property. On the plaintiff's side, the plaintiff was examined and cross-examined in extenso and the plaintiff's side was closed. Thereafter, two interlocutory applications were filed by the defendants. However, those two I.As were resisted by the plaintiff and those two I.As were dismissed. Being aggrieved and dissatisfied with the order of dismissal, these Civil Revision Petitions have been filed.

The learned counsel for the revision petitioner/1st defendant would submit that in the previous litigation, a counter was filed by the P.W. 1/ plaintiff herein averring certain facts. It has become necessary for the defendants to confront P.W.1 with the previous counter and then, only u/s 145 of the Indian Evidence Act, it would become evidence. While P.W. 1 was in the witness box, the defendant was in possession of only a photo copy of the P.W. 1''s previous counter in the earlier litigation and hence, he could not confront P.W.1 with that legally. Now only, the revision petitioner is in possession of a certified copy of the counter of P.W.1. The relevant documents to be numbered are:

i) Petition in Probate O.P.No. 13/1996-certified copy

ii) Counter filed by the Gopalakrishnan (P.W.1) in I.A. 100/2000 in O.P.No. 13/1996

iii) Order in I.A.No. 100/2000

iv) Power of Attorney given by Leslie Stephen to Gopalakrishnan (P.W.1) dated 13.04.2000

v) R.P. 47/2007 in O.P.No. 13/1996 filed by Gopalakrishnan (P.W.1) and those document are to be brought to the knowledge of P.W.1 so as to give an opportunity for him either to admit or deny the same for the reasons to be stated by him. If such an opportunity is denied, the defendant would not be able to prosecute his defence effectively.

The learned counsel for the respondent/plaintiff would submit that for two months P.W.1 was available for cross examination and that the cross-examination was conducted in extenso also and in such a case, the defendants cannot be allowed to capitalize their own latches and the suit itself is of the year 2001.

The point for consideration is as to whether the revision petitioner should be given an opportunity to recall P.W.1 for the purpose of confronting him with the five documents referred to supra?

The trite proposition of law is that as per Section 145 of the Indian Evidence Act, a witness has to be cross-examined as to his previous statement made by him in the earlier proceedings, if such statement has to be relied on.

Wherefore, I could see considerable force in the submission of the learned counsel for the petitioner that an opportunity has to be given to him and in the mean time, for the delay of the defendant, the respondent/plaintiff should not suffer and he should be compensated.

Having regard to the above facts and circumstances, both I.A.Nos. 782 and 781 of 2012 are allowed, by setting aside the order of the lower court subject to payment of Rs. 1,000/-, (Rupees one thousand only) payable by the revision petitioner/1st defendant to the respondent/plaintiff, within a period of one week from this date. In one hearing itself, the revision petitioner/1st defendant should complete the further cross-examination of P.W.1 by way of confronting him with the above said five documents.

At this juncture, both sides in unison submitted that even by coming Monday (i.e. On 03.12.2012), P.W.1 would appear before the lower court for submitting himself for further cross-examination with reference to those five documents. The learned counsel for the revision petitioner submits that the further cross-examination would be completed on that day itself. As such, these Civil Revision Petitions are disposed of, by setting aside the order of the lower court passed in I.A.Nos. 782 and 781 of 2012. Consequently, the connected miscellaneous petition is closed. The lower court shall do well to see that the entire suit itself is disposed of within a period of six weeks from the date of further cross-examination of P.W.1.