Rama Gounder vs Renu

Swamikkannu, J

Civil Revision Petition No. 36 of 1982 is directed against the judgment of the learned Subordinate Judge of Tiruvannamalai an appeal Suit No. 52 of 1981 returning the appeal memorandom for representation before proper forum as that Court has no jurisdiction to entertan the appeal.

Civil Revision Petition No. 4262 of 1982 is filed by the Plaintiff in Original Suit No. 1437 of 1978 on be file of the Disrict Munsif of Tiruvannamalai, challenging the dismissal of his suit.

In the instant case, the younger brother of the executant, Renu Chetty (D.W. 1) had not been called as a witness by the Plaintiff. It is submitted by Mr. R.S. Venkatachari that the Court below have actually dealt with the aspect and it is not asif both the Courts below have not exercised their discretion. He submits that once a discretion has been execrised by the lower Courts it is not open to this Court to direct the lower Court to call for a witness, who may be the party to a document as an attestor, and examine him as a Court witness by exercising the power and Section 165 of the Evidence Act or under Order XVI, Rule 14 Code of Civil Procedure. In this view, he also brings to the notice of this Court the decisions in Banchanidhi Panda Vs. Baishnab Charan Rout, and Corporation of Greater Bombay v. Lata Panchan. 30 The larned Municipal AIR 1944 100 (Privy Council) Counsel for the revision Petitioner would rely on this particular aspect of non-examination of one of the attestor, who is alive, so far as the revision Petitioner, is concerned, due to the fact that the said attestor is related to. the executant of the promissory not as younger brother and as such there is nothing wrong in the Plaintiff in not examining him as a witness on his behalf. another witness to this is promissory note exhibit A-1 is dead. The sotibe of the promissory note has been described by the Plaintiff, P.W. 1 as one who is inimically disposed towards him. It is no doubt true that u/s 118A of the Negotiable Instruments Act the presumption is that when once execution of a promissory note is admitted thereafter the bunden is on the Defendant to prove that he has not received considers tier under the negotiable instrument. In the instant case, it is submitted that the contention raised even in the written statement filed was that curtains gnaure were put by the Defendant on stamps that had been utilised by tie Plaintiff herein to fill up the upper blank portion and created exhibit A-1 in the instant case. It is in this document it is relevant to note, that the younger brother, Govindan found as an attestor. It is not clear from He evidence whether the said signature of Govindan is also disputed as one that had been put in the document, when as per the Defendant He upper portion of the recitial portion of exhibit A-1 was not available in a blank paper as alleged by him. When another attestor to the document is dead and when it is admitted by either side that Govindan Mho is related to the Defendant as his younger brother, is alive, justice requires that the said Govindan has to be examined as a witness. When both sides have not chosen to examine him and the Plaintiff has also given a reason that inasmuch as he is interested in the Defendant and sole cannot be examined on his behalf the question that conforms this Court is whether both the Courts below exercised their discretion as per Order XVI, Rule 14, Code of Civil Procedure.

It is also relevant to note that Section 165 of the Evidence Act clothes the Court with its power of questioning the witnesses regarding the several aspects that nay he actually exhibited at the time of the scrutiny of the document. As such exhibit A-1 in the instant case, had not been properly considered in this case It is seen that the only witness alive, namely Govindan, who is the younger brother of the executant, has not been examined Though a reason had been offered by the Plaintiff as P.W. 1 that as Govindan is related to the executant as his younger brother, be has not been called as a witness, yet when both sides have failed to examine the only witness, who bad attested that document when especially alive and available, the Court should have exercised, its power under Order XVI, Rule 14, CPC and examined him. Order XVL, Rule 14, CPC reads as follows:

Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the court at any time thinks it necessary to examine any person, including a party to the suit and not called as a witness by a party to the suit, the court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed and may examine him as a witness require him to produce such document.

Section 165 of the Indian Evidence Act reads as follows:

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any, form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the prediction of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, not, without the leave of the Court, to cross-examine any witness upon any answer given in reply to ay such question:

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved,

Provided also that this Section shall not authorise any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce u/s 121 to 131, both inclusive, if the question were asked or the document were called, for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask u/s 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.

The three decisions cited on behalf of the, Respondent by Mr. R.S. Venkatachari disclose the fads which and ferent from the instant case. This is case in which the Plaintiff ages in the plaint, as we as in his evidence that he did part with the consideration when the promissory note was duly executed by the Defendant D.W. 1. The Defendant has it forward a case that the promissory note, exhibit A-2 is a fabricated one. One Perumal, son of Ponnuswami, another witness exhibit A-1 is dead. Govindan, another attestor is the son of Subbaraya Chetty and the executant (Renu Chetty) of exhibit A-1 is also the son of Subbaraya Chettiar, which shows that there is some truth in what the Plaintiff alleges that Govindan is related as a brother of the executant, Renu Chetty, who had been examined as D.W. 1 in this case.

It is submitted on behalf of the Respondent that the scribe T. Kaliyatha Odayar is alive and the non examination of the said scribe by the Plaintiff is fatal to the case put forward by the Plaintiff. It is relevant to note that the Plaintiff, as P.W. 1 has slated that the said Kaliyatha Odayar, who is the scribe of exhibit A-1 has become inimically disposed towards him, subsequent to the transaction involved in exhibit A-1. It is submitted by Mr. R.S. Venkatachari that it is not for the Defendant to examine the scribe when the very execution itself is disputed by the Defendant. The non-examination of the scribe on the part of the Defendant cannot be taken as an adverse circumstances against the Defendant, the Respondent herein. The said Kaliyatha Odayar is alive.

This is a case in which the executant''s signature is not only found on the two revenue stamps of 25 paise each, but also in another revenue stamp of 10 paise bearing Refugee Relief seal, is also imbedded by the side of the other two revenue stamps in which the disputed signature of the Defendant, Renu Chetty is found. Not only the said aspect is staring at our race, bat it is relevant to note that mother signature of Renu in Tamil is found underneath the said revenue stamp. It is relevant to note as to whether the Rejuge Relief Stump had been released by the postald partment when the other two bigger revenue stamps were released. This aspect is also to be gone into inasmuch as the plea of the Defendant in the instant case is that the document is a fabricated one. In other words, the specific plea put forward by the Defendant is that the signatures were obtained from him in blank papers by the Plaintiff. Therefore, when all the above aspects are actually borne in mind, this Court is certainly of the view that the promissory note exhibit A-1 should be the subject matter of fur her careful scrutiny. Apart from the same, both sides have failed to examine both Govindan, the younger brother of the executant, and T. Kaliyatha Odayar, the scribe of the document, exhibit A-1 and as such they have to be examined as Court witnesses. The Court witness means a person who is required by the Cart to depose for finding out the truth in the course of administration of justice. In the instant case, when Govindan, the attestor exhibit A-1 is not examined on account of the feeling entertained by she Plaintiff that he must not speak in favour of him because he is no other than the younger brother of the Defendant and as such interested in the Defendant and T. Kaliyatha Odayar bad not been examined because be bad become enimically disposed towards him or because of some reason that is offered by the other side in non-examining, holding that the Plaintiff is the person who is duty bound to examine| because the harden lies on him do not stand in the way of the Court to shut its eyes and to examine only what is available and produced by either side by way of evidence. Section 165 of the Evidence Act as well as Order XVI, Rule 14, CPC have to be borne in mind to see that if anything is required as evidence for coming to a proper and correct way of appreciation of evidence and the failure on the part of both sides to produce that evidence, will not in any way obstruct the Court from exercising its jurisdiction u/s 165 of the Evidence Act and also calling the parties to depose regarding the aspects that are behind the curtain by virtue of exercising the power vested with the Court under Order XVII, Rule 14, Code of Civil Procedure.

In the instant case, the provisions of both Order XVI, Rule 14. CPC as well as Section 165 of the Evidence Act have not been exercised by the trial Court and the lower appellate Court also had not applied its mind in proparly appreciating the unique features included in this case by way of evidence and the failure of justice that may occasion because of the non-examination of the vital witnesses, namely the younger brother of the executant of the document viz., Govindan as well as the scribe, T. Kaliyatha Odayar. Mr. R.S. Venkatachari, learned Counsel for the Respondent submit that the Court below cannot be compelled to examine a witness because it has exercised its discretion already. But this Court finds that there bad been no exercise of discretion at all. The suit bad been laid on the promissory note and an appeal had been preferred and as against the appellate order this revision ''as been entertained by this Court. While going through the under of the trial Court as will as the order of the lower appellate Court, this Court finds that there had been a failure of the pail of bell the Courts below in not securing through the records the relevant evidence, which is absolutely necessary to come to a just and correct decision in this case. Therefore, u/s 115, CPC this Court has got ample power to remand the matter and direct the trial Court to examine the witness and thereafter appreciate the evidence available on record and come to a conclusion in accordance with law.

In the result, Civil Revision Petition No. 4262 of 1962 is allowed, the judgment and decree of the trial Court are set aside and the trial Court is directed to take the suit to its origins file and dispose of the same in accordance with law and in the light of the observations made above. The trial Court is also directed to take the suit on file immediately after the receipt of the records and dispose of the suit within one month from the date of receipt of the records, after giving an opportunity to both sides to adduce evidence, if any. While examining the two persons, namely Govindan and T. Kaliyatha Odayar as Court witnesses. The Court witnesses will be cross-examined by both the Plaintiff and the Defendant, if they desire to cross examine them.

So far as Civil Revision Petition No. 36 of 1982 is concerned, which is directed against the judgment of the learned subordinate Judge of Tiruvannamalai in Appeal Suit No. 52 of 1981, the lower appellate Court finds that it has got no jurisdiction to entertain the appeal. Inasmuch as this Court has entertained Civil Revision Petition No. 4262 of 1982 and remanded the matter by setting aside the judgment and decree of the trial Court this particular aspect need not be gone into in this revision petition As this Court has directed the trail Court to entertain the suit on its file for the examination of the two witnesses as Court witnesses, no further order is necessary in this revision petition. Under the circumstances, there is no order as to costs in these revision petitions.