S. Thiagarajan vs Tamilselvi and Others

K.K. Sasidharan, J.

This Civil Revision Petition is directed against the order dated 09.04.2013 in I.A. No. 204 of 2013 in O.S. No. 235 of 2009, whereby and whereunder, the learned Principal Subordinate Judge, Karur was pleased to dismiss the application filed by the petitioner for the purpose of re-opening the case on the side of the defendant and to examine the attesting witnesses to the document in Ex.B1.

The respondents filed a suit for partition in O.S. No. 235 of 2009 before the Principal Subordinate Judge Karur. The petitioner was arrayed as first defendant in the said suit. The petitioner placed reliance on a settlement deed stated to have been executed by Thiru.Saminathan, who is none other than his father. The execution of the said document was disputed by the respondents.

The respondents completed the examination of their witnesses. Thereafter, it was the turn of the petitioner herein to adduce evidence. The respondents filed a memo before the trial Court dated 16.10.2012, requesting the learned trial Judge to direct the petitioner herein to examine all his witnesses together on a particular date, fearing that in case the matter is adjourned to another date, witnesses would be tutored. The petitioner made an endorsement in the said memo to the effect that he would examine himself as a witness and he has no other witnesses to be examined on his side to prove his claim.

The petitioner was examined as D.W.1. The petitioner marked the settlement deed in Ex.B1. Thereafter, the petitioner filed an application to re-open the matter for the purpose of examination of D.W.2. The said application was allowed. The petitioner examined D.W.2, who is stated to be the scribe of the document in Ex.B1. The matter was thereafter posted for arguments.

It was only at that point of time, the petitioner filed another application in I.A. No. 204 of 2013 to re-open his side for the purpose of examining the attesting witnesses. The application was opposed by the respondents by filing counter affidavit. According to the respondents, the petitioner has already made endorsement that he would not examine any other witness and as such, it is not proper on his part to file a fresh application for examination of additional witnesses.

The learned trial Judge observed that the petitioner made an endorsement in the memo filed by the respondent that he is not going to examine any other witnesses. According to the learned trial Judge, in view of the endorsement made by the petitioner, it is not possible to permit him to adduce further evidence. Accordingly, the application was dismissed. The said order is under challenge in this Civil Revision Petition.

The learned counsel for the petitioner contended that the necessity to examine the attesting witness has arisen only on account of the stand taken by the respondents that the settlement deed in question is not a genuine document. According to the learned counsel, proviso to Section 68 exempts the examination of attesting witnesses in proving the execution of document not being a Will, in case that has been registered in accordance with the provisions of the Indian Registration Act, unless the execution is specifically denied by a party to the proceedings. The learned counsel contended that the respondents have specifically denied the execution of settlement deed and as such, the petitioner was bound to examine the attesting witnesses.

The learned counsel for the respondents by placing reliance on the memo filed before the trial Court and the endorsement made by the petitioner contended that the petitioner has given a clear undertaking that he is not going to examine any other witnesses on his side. According to the learned counsel, there would not be any sanctity to the memo, in case the petitioner is permitted to examine additional witnesses inspite of giving an undertaking earlier.

The petitioner in his written statement filed in O.S. No. 235 of 2009 made a specific plea that the property in question was settled in his favour by Thiru.Saminathan as per document dated 15.09.1999. The petitioner produced the original of the registered settlement deed before the trial Court. It was marked as Ex.B1. The petitioner examined the scribe of the document.

The respondents wanted the examination of witnesses on the side of the petitioner to be completed on a particular date. The respondents therefore filed a memo before the trial Court for passing appropriate orders to direct the petitioner to complete his evidence without adjourning the matter. There is no dispute that the petitioner made an endorsement indicating that he is not going to examine any other witnesses. Only on the basis of the said undertaking, the petitioner examined himself as D.W.1 and the scribe was examined as D.W.2.

The petitioner having found that the proviso to Section 68 of Evidence Act provides for examination of the attesting witnesses in case of challenge made to the registered document, filed an application in I.A. No. 204 of 2013. The application was dismissed by the trial Court, only on the ground that the petitioner made an endorsement that he is not going to examine any other witnesses.

The core question is as to whether in view of the endorsement made by the petitioner, he should be precluded from examining further witnesses, in spite of the statutory mandate as contained in the proviso to Section 68 of the Indian Evidence Act.

It is not the case of the respondents that the settlement deed in question was not marked on the side of the petitioner. The petitioner has already marked the settlement deed as Ex.B1. The scribe was also examined. The petitioner wanted the attesting witnesses to be examined to prove the document. It is not as if the respondents would not be given opportunity to cross examine the attesting witnesses. Merely because, the petitioner has given an undertaking that he would not examine any other witnesses, he cannot be denied the opportunity of examining the attesting witnesses. Since the petitioner has already marked the settlement deed as Ex.B1, necessarily, he should be permitted to examine the attesting witnesses in view of the proviso to Section 68 of the Indian Evidence Act. I am therefore of the view that the learned trial Judge was not correct in dismissing the application in I.A. No. 204 of 2013.

In the result, the order dated 09.04.2013 in I.A. No. 204 of 2013 in O.S. No. 235 of 2009 is set aside. The learned trial Judge is directed to permit the petitioner to examine the attesting witnesses. The respondents should be given due opportunity to cross examine the witnesses.

In the upshot, I allow the Civil Revision Petition. No costs. Consequently, connected M.P.(MD) No. 1 of 2013 is closed.