K. Jothi and Others vs D. Prema and Others

K.K. Sasidharan, J.—Challenge in CRP (PD) No. 1200 of 2009 is to the order passed by the learned Additional District Judge,

Coimbatore in I.A. No. 608 of 2008 in O.S. No. 469 of 2004 dismissing the application filed by the petitioners with a prayer to reject the right of

the first respondent to cross examine the fifth respondent.

Challenge in CRP (PD) No. 1273 of 2009 is to the order passed by the learned District Munsif, Coimbatore in I.A. No. 1041 of 2009 granting

an order of interim injunction against the petitioners.

CRP (PD)No.1200 of 2009

BACKGROUND FACTS

The suit in O.S. No. 469 of 2004 was preferred by the first respondent against the revision petitioners and respondents 2 to 5 praying for a

judgment and decree of partition of the suit property into seven equal shares and to allot one such share to her with separate possession and

enjoyment.

In the plaint in O.S. No. 469 of 2004, the first respondent would contend thus:

(a) The schedule property was purchased in the name of deceased Janakiammal by her husband late K. Venkatesalu, who is none other than the

father of the plaintiff and defendants 1 to 5. The property was purchased as per registered document dated 15.6.1951 and the entire sale

consideration was paid by Thiru K. Venkatesalu though the property was purchased in the name of his wife Janakiammal. Subsequent to the

purchase Thiru K. Venkatesalu constructed a bungalow, which was given the name ""Green Banks"". The entire funds for the construction was

provided only by late Venkatesalu. His wife Janaki Ammal was only a house wife and she was not having the resources both for purchasing the

property as well as to put up the bungalow.

(b) The parents of the plaintiff was having only female children and as such the sixth defendant, her son was given in adoption to her parents, as per

the deed of declaration of adoption dated 16.6.1983. Accordingly the sixth defendant was taken over by her parents, treated him as their son and

he was brought up as such to the knowledge of the entire public of Coimbatore. The sixth defendant was residing along with the adopted parents

and his entire education was met by them and he was also given in marriage.

(c) The sixth defendant was a dutiful son of Janakiammal and K. Venkatesalu. He performed all the duties of a son and lived with them throughout

their life. The marriage of the children of deceased Venkatesalu were performed by the parents in a grand manner. However the fifth defendant

was a spendthrift without any moral standard and she divorced her husband and on account of her conduct which was not expected from the

member of a reputed family the parents were in great sorrow. Mr. Venkatesalu died on account of the mental torture inflicted by the fifth

defendant. Her mother Janakiammal was also at great pains on account of the activities of the fifth defendant in particular.

(d) While the matters stood thus, the fifth defendant made attempts to marry her blood relation, the seventh defendant, which was also not liked by

the members of the family including their mother. The mother was so worried that it would be impossible for her to move in the society.

Subsequently the mother became sick and ultimately she died. The fifth defendant in collusion with defendants 2 to 4 in the suit, fabricated and

cooked up a will dated 8.8.2002 to grab the ""A"" schedule property. The said will was not genuine, valid and binding on the plaintiff.

(e) According to the plaintiff, her deceased mother was not in a good mental condition and as such the will was the result of a rank forgery

committed by the fifth defendant in association with her accomplice. Therefore the will was not valid and enforceable and no right would accrue to

the beneficiaries of the will. In such circumstances, the plaintiff prayed for partition of the property.

The suit was contested by the defendants.

In the written statement filed by the revision petitioners, being defendants 3 and 5 in the suit, they have narrated the facts which led to the

execution of the will by their mother. According to the revision petitioners the property originally belonged to Janakiammal only and it was

purchased with her stridhana property. In fact late Venkatesalu was not having any money with him for the purpose of purchasing the property as

he was only a Supervisor in a Textile Mill at Coimbatore. The beneficiary of the will were either divorcees or were living separately from their

spouse and they were also not having any residence to live, which was the sole reason for executing the will in their favour by their mother. The

second revision petitioner has also justified her marriage with the seventh defendant.

The fifth respondent, who is none other than the son of the first respondent has filed separate written statement. It was his case in the written

statement that ""B"" schedule property was ancestral joint family property and as such he was entitled to half share in the entire properties and

another share out of the share of Venkatesalu. The fifth respondent has also stated that the properties were purchased not by Venkatesalu and the

funds of his grand-father Kandasamy Naidu were also utilised for acquiring the property. According to him he was entitled to a larger share than

what was stated in the plaint.

Subsequently the suit was taken up for trial and P.W.1 was examined and the evidence on the side of the plaintiff was closed. Since the fifth

respondent was not setting up a case adverse to the first respondent, he was examined as D.W.1. The first respondent/plaintiff, who is none other

than the mother of the fifth respondent sought to cross examine the fifth respondent.

The revision petitioners found that the fifth respondent has no adverse interest against the first respondent and as such the first respondent was

not entitled to cross examine D.W.1. Accordingly they filed an application in I.A. No. 608 of 2008.

INTERLOCUTIORY APPLICATION:

In the affidavit filed in support of the application in I.A. No. 608 of 2008, the revision petitioners have contended that two material issues arise

for consideration in the suit and they being, whether the ""A"" schedule property was purchased by K. Venkatesalu and as to whether Janakiammal

died leaving behind the will dated 8.8.2002 as her last will and testament. In respect of both these two issues, the fifth respondent has supported

the case of the first respondent. Therefore there was no adversity or conflict of interest between the first respondent and the fifth respondent so as

to enable the first respondent to cross examine the fifth respondent as D.W.1. Therefore the petitioners prayed for rejecting the right of first

respondent to cross examine the fifth respondent.

The application was contested by the first respondent by filing counter. According to her, there was conflicting interest between her and the

fifth respondent and as such she is entitled to cross examine D.W.1. It was her further contention that, the fifth respondent has not disputed the will

stated to have been executed by her mother on 8.8.2002 and as such it cannot be said that the fifth respondent was supporting her case.

The fifth respondent has not filed any counter in answer to the contentions raised in I.A. No. 608 of 2008.

The learned trial Judge found that the contentions of the first respondent and the fifth respondent were not the same in respect of the quantum

of share. Similarly the devolution of the property in plaint ""B"" Schedule was also not admitted by the fifth respondent. Nothing was indicated in the

written statement filed by the fifth respondent about the will. Therefore the learned trial Judge was of the view that the fifth respondent was an

adversary in so far as the first respondent was concerned and as such the first respondent was entitled to cross examine D.W.1. Accordingly the

application was dismissed. It is the said order, which is impugned in the civil revision.

CRP (PD) No. 1273 of 2009:

The respondent/fifth respondent in CRP (PD).N.1200 of 2009 preferred a suit in O.S. No. 980 of 2009 before the District Munsif Court,

Coimbatore against the revision petitioners and their private limited company. The suit is one for injunction.

In the plaint in O.S. No. 980 of 2009, the respondent/plaintiff would contend thus:

(a) The plaint schedule property originally belonged to his father K. Venkatesalu. He was also having several other properties. The said

Venkatesalu died intestate on 17.5.1997 leaving behind him and six daughters. After the death of Venkatesalu, the plaintiff and other legal heirs

including the mother Janakiammal were in possession and enjoyment of the suit property as well as other properties left behind by his father. The

property was purchased by Venkatesalu out of his own income in the name of his mother Janakiammal and one N. Duraisamy and Damodaran on

15.6.1951. Subsequently a partition was effected between the parties as per document dated 2.1.1961. Thereafter his father constructed a

Bungalow and it was named as ""Green Bank"".

(b) His mother Janakiammal was not in a good health condition on account of knee transplantation and old age and it was not possible for her to

identify any person and things. She became very sick due to various ailments and she was not in a sound and disposing state of mind. Ultimately

she died on 22.10.2002. After the death of Janakiammal the suit property known as ""Green Bank"" and other properties devolved on her legal

heirs including the plaintiff.

(c) While the matters stood thus, the plaintiff found a publication in the Indian Express on 23.3.2009 regarding the mortgage created by the

defendants in respect of the suit property in favour of Merchantile Bank on the basis of a forged will. Necessary enquiries were made by the

plaintiff with the Tamil Nadu Merchantile Bank and it was only at that point of time, he came to know that the defendants with an intention to cheat

him and other legal heirs have created a fabricated will as if the same was executed by deceased Janakiammal. There was no such will as alleged

and the will was a rank forgery. Defendants 3 and 4 managed to obtain a loan of Rs. 10 crores and created a mortgage on 17.10.2006 on the

strength of the alleged will.

(d) On 20.4.2009, the defendants attempted to dispossess him and the same was thwarted by him by the timely intervention of his friends and well

wishers. The defendants are highly influential persons having men and material at their command and as such they would resort to acts of trespass

and forcible dispossession. Therefore he was constrained to file the suit for injunction.

Along with the suit in O.S. No. 980 of 2009, the respondent also filed an application for ex parte injunction in I.A. No. 1041 of 2001 on

24.4.2009. The learned trial Judge by way of a cryptic order granted an ex parte injunction on 24.4.2009. It is the said order which is challenged

in CRP. (PD). No. 1273 of 2009.

THE ISSUE:

The substantial issue that arises for consideration in C.R.P.(PD). No. 1200 of 2009 is as to whether the first respondent is having an interest

adverse to that of the fifth respondent so as to enable her to cross examine the fifth respondent, who was examined as D.W.1.

EXAMINATION OF WITNESSES:

Chapter X of the Indian Evidence Act, 1872 deals with examination of witnesses. As per Section 135, the order in which witnesses are

produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in

the absence of any such law, by the discretion of the court. Section 138 deals with order of examinations which provides that witnesses shall be

first examined-in-chief then (if the adverse party so desires) cross examined, then (if the party calling him so desires) re-examined. Section 137

provides examination in chief as well as cross examination and re-examination. Examination of a witness by the party, who calls him is called

examination-in-chief. The examination by an adverse party is called cross examination. Similarly, examination of a witness, subsequent to the

cross-examination by the party, who called him is called re-examination.

Cross examination of a witness is a right given to the opposite party. The law makers have used the word ""adverse party"" in so far as the

question of cross examination is concerned. Therefore the right to cross examine a witness was given only to the party, having adverse interest in

the matter. While considering the question as to whether a party was having interest adverse to that of the other, the entire pleadings have to be

considered. It is not sufficient if one or two paragraphs from the written statement is taken in isolation. The entire text of the written statement has

to be taken into consideration in order to see as to whether the fifth respondent was supporting the case of the first respondent or he was setting up

a case adverse to her interest. Incidentally the fifth respondent has also filed a suit in O.S. No. 980 of 2009 against the revision petitioners. Since

the said suit is with respect to the very same property which is the subject matter in the suit in O.S. No. 469 of 2004, the averments in the said suit

have also to be taken into consideration to decide the issue of adverse interest.

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.

The statute gives right to a party to cross examine a witness, if his interest was adverse to the party who called him as a witness.

The right to cross examination being a statutory right it cannot be denied lightly. The trial court has to exercise the jurisdiction in accordance

with settled legal principles.

The adverse nature of the case would be revealed from the pleadings already on record. There would be situations where the adverse nature

of the claim would arose even during the course of recording evidence. The provision to cross examine a witness by a party, who called him as a

witness and examined in chief was inserted in the evidence act only to meet such situations. In case such hostile witnesses were not permitted to be

cross examined, it would cause prejudice to the parties as the evidence given by the witnesses would remain unchallenged and it would be used

against the person, who called him as a witness. Therefore the law makers were conscious of the fact that both on account of the adverse nature of

the case as borne out by pleadings as well as on account of the hostile evidence tendered, a party would be entitled to cross examine the witness.

THE DISPUTE:

In the case on hand the main dispute is about the acquisition of property by the mother of the petitioners. According to the first

respondent/plaintiff the property was purchased by her father K. Venkatesalu out of his income in the name of mother Janakiammal. However the

revision petitioners contended that the father had no independent source of income and it was only with her sthridhana property, mother

Janakiammal, purchased the property.

The next contention is about the will stated to have been executed by mother Janakiammal in favour of the revision petitioners and others on

8.8.2002 in respect of the plaint ""A"" Schedule property.

Therefore the challenge in the suit relates to the nature of acquisition as well as the will executed by mother Janakiammal. In such

circumstances, the adverse interest has to be considered only as per the pleadings with respect to the acquisition of property by mother

Janakiammal as well as the will executed by her.

Since the fifth respondent has already filed a suit in O.S. No. 980 of 2009 before the learned District Munsif, Coimbatore and as the orders

passed in the said suit was challenged in C.R.P.(PD). No. 1273 of 2009, I had the advantage of reading the plaint in the said suit. In the said suit

the fifth respondent has taken a definite stand both with regard to the nature of acquisition as well as execution of will.

The contention of the first respondent/plaintiff and the fifth respondent/6th defendant would be clear from the following chart.

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Plaintiff''s case Case of the 6th defendant Case of the 6th

in O.S. No. 469/2004 defendant being

plaintiff in O.S.

No. 980 of 2009

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The property was The property was purchased The property was purchased

purchased by by Venkatesalu only. But he by K. Venkatesalu out of

K. Venkatesalu was given the funds by his his own funds in the name

out of his own father Kandasamy Naidu. of Janakiammal

funds in the name Janakiammal had no

Janakiammal independent source of income

to purchase the property.

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The Will stated to - Janakiammal was not in a

have been executed sound and disposing state

by mother of mind. The will was a

Janakiammal in fabricated one created by

respect of the the revision petitioners

plaint ""A"" and her sister. It was a

schedule property forged will created only

in favour of the for the purpose of cheating

revision and to deprive him of

petitioners and getting his legitimate

Jayanthi was a share in the suit

forged will as property.

mother has not

executed the will.

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The above chart clearly shows that the fifth respondent/6th defendant has also supported the case of the first respondent/plaintiff with regard to

the nature of acquisition as well as the execution of will by mother Janakiammal

The learned trial Judge has taken note of the contentions in the written statement of the fifth respondent with regard to the funds provided by

the grand-father and the share claimed by him. Those contentions have nothing to do with the main issues to be decided in the suit. The petitioners

appear to have not cited the attention of the learned trial Judge with respect to the subsequent plaint filed by the fifth respondent in O.S. No. 980

of 2009. There was also no attempt made by them to mark the plaint in O.S. No. 980 of 2009 in the interlocutory application. Therefore I am of

the view that the matter requires to be considered by the learned trial Judge afresh.

CRP No. 1273 of 2009

The learned trial Judge by way of a brief order restrained the revision petitioners from interfering with the peaceful possession and enjoyment

of the suit property by the respondent. However nothing was indicated in the said order about the materials which were considered by the learned

trial Judge to decide the prima facie case, balance of convenience as well as irreparable injury.

While granting an injunction ex parte, the Court was required to consider the prima facie case and balance of convenience. It is not sufficient

that the Court reproduces the ingredients of Order 39 Rule 1 of the Code of Civil Procedure. The attempt of the court should be to assess the

merits of the case pleaded by the petitioner to find out the prima facie basis and the order should contain reasons which weighed with the learned

trial Judge for granting the order of injunction. Reasons should be indicated in the order. Reasons introduce clarity to the order and it would also

enable the appellate or revisional authority to assess the factors which made the learned trial Judge to grant the order of ex parte injunction.

RIGHT TO REASON:

In Director, Horticulture Punjab and Others Vs. Jagjivan Parshad, , the Supreme Court underlined the necessity to record reasons thus:

Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ''inscrutable face of the sphinx'',

it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in

adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party

can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in

other words, a speaking-out. The ''inscrutable face of a sphinx'' is ordinarily incongruous with a judicial or quasi-judicial performance.

(See Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar,

PRIMA FACIE CASE:

The Supreme Court in M. Gurudas and Others Vs. Rasaranjan and Others, explained as to what is meant by prima facie case thus:

While considering an application for injunction, it is well settled, the courts would pass an order thereupon having regard to:

(i) Prima facie case

(ii) Balance of convenience

(iii) Irreparable injury.

A finding on ""prima facie case"" would be a finding of fact. However, while arriving at such a finding of fact, the court not only must arrive at a

conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist.

The learned Counsel appearing on behalf of the respondent very fairly conceded that the learned trial Judge should have indicated reasons in

support of his order. According to the learned Counsel the trial Judge should be directed to pass fresh orders after considering the counter filed by

the revision petitioners.

Therefore I am of the opinion that the impugned order is liable to be set aside.

DISPOSAL:

In the result the order dated 9.4.2008 in I.A. No. 608 f 2008 in O.S. No. 469 of 2004 on the file of the learned District and Sessions Judge

(Fast Track Court No. II), Coimbatore is set aside. The matter is remitted to the trial court for fresh consideration on merits and as per law

without in any way being influenced by the observation contained in the present order. It is open to the petitioners to produce a copy of the plaint

in O.S. No. 980 of 2009 as a document to be exhibited in I.A. No. 608 of 2008. The civil revision Petition No. 1200 of 2009 is allowed.

Similarly the order dated 24.4.2009 in I.A. No. 1041 of 2009 in O.S. No. 980 of 2009 on the file of the learned First Additional District

Munsif, Coimbatore is set aside. The learned Judge is directed to consider the interlocutory application on merits and as per law and to dispose of

the matter within thirty days from the date of receipt of a copy of this order. The Civil Revision Petition Petition No. 1273 of 2009 is allowed.

Consequently the connected Mps are closed. No costs.