N. Krishna Gowda vs T. Rangan

M. Venugopal, J.—The Petitioner/Defendant has preferred Civil Revision Petition No. 2034 of 2010 as against the order dated 08.04.2010

in I.A. No. 23 of 2010 in O.S. No. 222 of 2007 passed by the Learned District Munsif, Udagamandalam. The Petitioner/Defendant has focussed

Civil Revision Petition No. 2035 of 2010 as against the order, dated 08.04.2010 in I.A. No. 24 of 2010 in O.S. No. 222 of 2007 passed by the

learned District Munsif, Udagamandalam.

The Learned District Munsif, Udagamandalam, while passing the common order in I.A. Nos. 23 and 24 of 2010 in O.S. No. 222 of 2007,

dated 08.04.2010, has, among other things, observed that, ''... Further, in this aspect already D.W.1 was cross examined and hence, now the

claim of the Petitioner amounts to fill up the lacunas in his evidence etc.'' and resultantly held that ''these petitions are not maintainable'' and

dismissed the same without costs.

Assailing the dismissal order passed by the trial Court in I.A. Nos. 23 and 24 of 2010, dated 08.04.2010, in O.S. No. 222 of 2007, the

Learned Counsel for the Petitioner/Defendant submits that the trial Court has misconstrued the scope of the applications filed by the

Petitioner/Defendant seeking to recall D.W.1 and further to permit the Petitioner/Defendant to produce documents (Legal Notice dated

26.11.2004, Acknowledgment Card dated 30.11.2004 and the Certificate of Posting sent to the Superintendent of Police, Nilgiris, dated

29.11.2004).

The Learned Counsel for the Petitioner/Defendant urges before this Court that the Legal Notice in question sent by the Petitioner/Defendant''s

Counsel and the Acknowledgment are all vital in nature and the contents thereof would clearly disprove the entire suit claim of the

Plaintiff/Respondent.

The main thrust of the argument advanced on behalf of the Petitioner/Defendant is that by marking the copy of the Legal Notice dated

26.11.2004 through D.W.1 (sent to the Plaintiff''s daughter, Vimala), the Respondent/Plaintiff in Law can controvert or repudiate the contents of

the said document and the principles of natural justice require that adequate/enough opportunities will have to be provided to the Revision

Petitioner/Defendant to substantiate his case.

Further, an argument has already been advanced on behalf of the Petitioner/Defendant that it is for the Revision Petitioner/Defendant to establish

his case/version of the defence taken by him in his written statement and as such, the dismissal of both I.A. Nos. 23 and 24 of 2010, dated

08.04.2010, would not stand scrutiny in the eye of Law.

Conversely, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the Respondent/Plaintiff, as P.W.1, during his Cross-

examination, has denied the Legal Notice as well as the Acknowledgment Card etc. in question and in fact, there is no pleading in the proof

affidavit of the Revision Petitioner/Defendant and no tangible explanation has been offered for the absence of said pleading. Under these

circumstances, the trial Court has rightly dismissed I.A. Nos. 23 and 24 of 2010 in O.S. No. 222 of 2007, dated 08.04.2010, which does not

suffer any irregularity or patent illegality in the eye of Law.

At this stage, the Learned Counsel for the Petitioner/Defendant draws the attention of this Court to paragraph No. 2 of the written statement

(filed by the Revision Petitioner/Defendant before the trial Court) wherein it is inter alia observed as under:-

... Since the said J.A. Manjunath passed away as a sudden, the defendant settled the said loan with interest due totalling Rs. 50,000/- to the

plaintiff''s daughter and widow of late J.A. Manjunath on 11.06.2004 by cheque dated 11.06.2004 bearing No. 882023 drawn on UCO Bank,

Udhagamandalam. During the said settlement, the plaintiff''s daughter Mrs. Vimala told the defendant that the blank promissory note handed over

to her husband was not found and therefore she promised to return the same to the defendant if it is traced out in the future and the plaintiff was

present with her at that time. The statement of account of the defendant with UCO Bank, Ooty branch is filed herewith which will show the

payment made to Mrs. Vimala on 11.06.2004.

Continuing further, in the written statement of the Revision Petitioner/Defendant, in paragraph No. 3, it is also stated as follows:-

In the above circumstances, the defendant strongly suspects that Mrs. Vimala after acknowledging the repayment of the said loan by above-

mentioned cheque has misused the said blank promissory note of the defendant to forge the same by illegally preparing the same for a sum of Rs.

60,000/- in the name of plaintiff who is no way known or related to the defendant at any point of time before 11.06.2004. Now the plaintiff and his

said daughter have instituted this suit against the defendant as if the defendant is due an alleged sum claimed in the plaint.

By pointing out the aforesaid averments in paragraph No. 2 and paragraph No. 3 of the written statement filed by the Revision

Petitioner/Defendant, the Learned Counsel for the Petitioner/Defendant contends that the Revision Petitioner/Defendant has raised a plea of settling

the loans in question with interest due totalling Rs. 50,000/- to the Respondent/Plaintiff and widow of late J.A. Manjunath on 11.06,2994 by

cheque dated 11.06.2004, bearing No. 882023 drawn on UCO Bank, Udhagamandalam and as such, the trial Court has completely gone wrong

in this regard.

It is to be borne in mind that at the time of filing of the Plaint under Order 7 Rule 14(1) of Code of Civil Procedure, the plaintiff is required to

make a mention in the list of documents, the document which he relies upon in support of the suit claim. As per Order 7 Rule 14 of the Code of

Civil Procedure, the documents in the list under Sub Rule 2 of Order 7 are the documents referred to in the pleadings, whose inspection the

Revision Petitioner/Defendant is entitled to under Order 7 Rule 14 of Civil Procedure Code. Sub Rule 3 of Rule 14 of Order 7 of CPC directs the

Plaintiff to file documents which he intends to rely on. Where the documents mentioned in the list of documents are not produced at the time of

filing of the plaint, the same would not be received in evidence without the express leave of the Court. Order 7 Rule 14 of CPC is restricted in

application to the documents, which are either based on the claim or which are relied on by the Respondent/Plaintiff for supporting his claim. So far

as the right of the Plaintiff to utilise a document only for the purpose of attacking the testimony of a witness is concerned, such right does not

appear to have been taken away by Order 7 Rule 14 or Rule 18 of the Code of Civil Procedure.

It is to be noted, in the instant case on hand, that P.W.1 (Plaintiff), during his cross-examination has denied the Legal Notice and the

Acknowledgment etc. Therefore, even though D.W.1 has already been examined by way of recall, the Revision Petitioner/Defendant is making an

endeavour to mark the Legal Notice, Acknowledgment etc. on his side to substantiate or prove his version of the case. A Court of Law is to

provide utmost opportunity to a litigant/party to establish his case/version of the suit claim. In what manner a witness is to adduce evidence or to let

in evidence is not the province of a Court of Law, as opined by this Court. It is the fundamental duty of a Judge/Court of Law to examine every

witness tendered, unless it appears clearly that the object of summoning the witnesses mentioned in the list is to cause delay/obstruct the Court of

Justice.

At this juncture, this Court pertinently points out that it is not right for the Court of Law/Judge to select certain number of witnesses and turn

away the rest, because he thinks that they would only prove the same facts as those already deposed or because he is satisfied on the available

evidence on record, as per the decision Brij Soondar -vs- Kinoonnissa (1974) 23 WR 63. As a matter of fact, a litigant to a suit cannot be denied

the right to examine any witness. Merely showing of documents during a cross-examination would not amount to admission of the documents in

evidence.

Be that as it may. It is the discretion of the Court of Law to examine a witness at any stage of the case and to prevent an aberration of justice,

a party may be allowed another opportunity to lead evidence. The expression ''at any stage'' refers to at any point of time till the date of

pronouncement of judgment in a given case when the Court ceases to have seisin of the suit as per decision Alekh Pradhan and Others Vs.

Bhramar Pal and Another, ).

As far as the present case is concerned, even though P.W.1, in his cross-examination, has denied the Legal Notice dated 26.11.2004 sent by

the Petitioner/Defendant to the Plaintiff''s daughter, Vimala, and the Acknowledgment Card, yet, there is no express or implied bar in law on the

part of the Defendant as D.W.1 to mark them on his side. The only rider would be that in such a case of marking the aforesaid documents on the

side of the Revision Petitioner/Defendant, as D.W.1, then the Respondent/Plaintiff, as a logical corollary, is to be provided with an opportunity to

cross-examine D.W.1 in respect of those documents marked.

Also that, in the present case on hand, in paragraph No. 2 of the written statement filed by the Revision Petitioner/Defendant in the suit, the

Revision Petitioner has taken a specific stand that since the said J.A. Manjunath passed away as a sudden, he has settled that the said loan with

interest due totalling Rs. 50,000/- to Respondent/Plaintiff''s daughter and widow of late J.A. Manjunath on 11.06.2004 by cheque dated

11.06.2004 bearing No. 882023 drawn on UCO Bank, Udhagamandalam. It cannot be said by any means that the Revision Petitioner/Defendant

has not made any foundation in regard to the plea raised by him pertaining to the suit claim.

Per contra, a closer scrutiny of the contents of paragraph No. 2 and Paragraph No. 3 of the written statement filed by the Revision

Petitioner/Defendant unerringly point out that there is a foundation for the stand taken by the Revision Petitioner/Defendant in regard to the suit

claim, in his written statement. Therefore, the contra view taken by the trial Court in this regard is not per se correct in the eye of Law. Although

the trial Court, while passing the common order in I.A. Nos. 23 and 24 of 2010 in O.S. No. 222 of 2007 dated 08.04.2010, has opined that

there is no pleading in the proof affidavit of the Revision Petitioner/Defendant and no explanation was offered for the said pleading. Yet, it appears

that the trial Court has not borne in mind about the specific averments made by the Revision Petitioner/Defendant in paragraph No. 2 and

paragraph No. 3 of the written statement which has already been extracted supra.

To put it succinctly, if the trial Court has taken into account/consideration the specific averments of the Revision Petitioner/Defendant in

paragraph No. 2 of the written statement filed by the Revision Petitioner/Defendant, then it would have come to a different conclusion while

passing the impugned order in I.A. Nos. 23 and 24 of 2010 in O.S. No. 222 of 2007 dated 08.04.2010.

Also that, when a Court of Law deals with an application to recall D.W.1 for the purpose of marking document etc., it has to take a liberal,

lenient, pragmatic, common sense and practical approach to secure the ends of justice.

On a careful consideration of the respective contentions and in the upshot of qualitative and quantitative discussions mentioned supra, this

Court comes to an inevitable conclusion that the trial Court has committed an error in dismissing the Interlocutory Applications in I.A. Nos. 23 and

24 of 2010 in O.S. No. 222 of 2007. As such, this Court is perforced to interfere with the said order of dismissal passed by the trial Court in I.A.

Nos. 23 and 24 of 2010 in O.S. No. 222 of 2007, dated 08.04.2010, and to prevent an aberration of justice and to promote substantial cause of

justice, this Court interferes with the said order and sets aside the same in the interest of justice. Consequently, both the Civil Revision Petitions

succeed.

In the result, the Civil Revision Petitions are allowed. The common order passed by the trial Court in I.A. Nos. 23 and 24 of 2010 in O.S. No.

222 of 2007, dated 08.04.2010, are set aside for the reasons assigned supra. Since the suit is of the year 2007 and nearly six years old and also

taking note of the fact that the suit is at the admission stage, this Court directs the trial Court to dispose of the main suit within a period of four

months from the date of receipt of a copy of this order and to report compliance to this Court without fail. The respective parties are directed to

lend their unstinted co-operation in regard to completion of proceedings in the main suit and the trial Court is directed to adhere to the time

schedule in regard to disposal of the case as determined by this Court. No costs.