Arulmighu Kadumbadi Chinnamman Thirukoil vs R. Palani Chettiar

G. Rajasuria, J.—Animadverting upon the order dated 10.04.2008 passed by the learned XVII Assistant Judge, City Civil Court, Madras,

in I.A. No. 4643 of 2008 in O.S. No. 5853 of 2003, this Civil revision petition is focussed. Heard both sides.

A ""resume"" of facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:

The revision petitioner filed the suit O.S. No. 5853 of 2003 before the lower Court seeking possession and damages for use and occupation.

During trial, on the side of the petitioner Devasthanam, its then Managing Trustee examined himself as P.W.1 in chief. In the meanwhile, before he

was cross examined, a new Managing Trustee was appointed and he is ready and willing to depose on behalf of the plaintiff and submit himself for

cross examination also and in such a case, he wanted the earlier deposition of P.W.1 to be eschewed. To that effect, I.A. No. 4643 of 2008 was

filed before the lower Court which was dismissed by the lower court, even though the other side did not object to it. Being aggrieved by and

dissatisfied with the order of the lower Court, this revision petition is focussed on various grounds.

The learned counsel for the petitioner would develop his argument to the effect that the lower Court was not right in observing that there is no

provision for eschewing the evidence of P.W.1; procedural laws are hand maids of justice and there is no specific provision also governing each

and every aspect involved in the trial of a case and the Court is expected to exercise its jurisdiction based on the principles of natural justice and

convenience. The learned counsel for the petitioner would also submit unconvincingly that once a new Managing Trustee is appointed, the earlier

trustee who had got himself examined as P.W. 1 would have no more right to proceed with his deposition. P.W.1 was the Managing Trustee at the

time of deposing in chief examination and at the stage of cross examination he was no more in that tort but on that ground alone he was not legally

disqualified from deposing on behalf of the plaintiff. However, in this case the plaintiff being the dominus litis wants to give a go by to the evidence

given by the then Managing Trustee and such an evidence was also not subjected to cross examination and in such a case, liberty is always

available with the plaintiff either to retain that evidence or give a go by to it. However, if the defendant wants to rely upon any admission made

already by the then Managing Trustee, it is open for the defendant to rely upon it while cross examining the present Managing Trustee. With this

observation I would set aside the order of the lower Court and allow the application of the petitioner.

Accordingly, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.