V.L. Ramanathan vs Salem Nagarathar Sangam

R. Karuppiah, J.—The revision petitioner, who is the plaintiff in the original suit in O.S. No. 816 of 2005 filed this revision petition against the order and decreetal order dated 03.08.2009 made in I.A. No. 1083 of 2009, on the file of Principal District Munsif Court, Salem. Heard the learned counsels appearing for the revision petitioner and the respondents 1, 3 and 4.

The revision petitioner filed the original suit for rendition of accounts and other reliefs. The defendants have filed the written statement and the issues have been framed by the trial court. Before the trial court, the revision petitioner has deposed as witness and on the side of the respondents/defendants also examined one witness and closed the defendants side evidence. After that the revision petitioner has filed an application in I.A. No. 1083 of 2009 under Order 19 Rule 1, 2 and 151 of CPC to direct the 4th respondent/4th defendant to attend the Court for cross-examination by the revision petitioner''s side. On perusal of the affidavit and counter, the trial court has held that the party cannot be compelled to give evidence at the instance of the other relied on the decision of this Court reported in (2003) 1 MLJ 556 (V.P. Subramaniam v. P. Saraswathi) and also held that even if not examined, adverse inference can be drawn against him and therefore, dismissed the above said application. Aggrieved over the findings of the trial court, this revision petition has been filed.

The learned counsel appearing for the revision petitioner submitted that under Order 16 Rule 21 CPC, the revision petitioner/plaintiff is entitled to examine the 4th respondent/4th defendant as witness, but, the trial court has wrongly held that it cannot be compelled any witness and therefore, prayed for to set aside the order passed by the trial court. To substantiate the contention, the learned counsel appearing for the revision petitioner relied on a decision of this Court reported in V.K. Periasamy @ Perianna Gounder Vs. D. Rajan, .

The learned counsel appearing for the respondent would submit that no witness can be compelled to give evidence in a civil suit and further, in the instant case, the plaintiff has filed a suit against all the defendants and the respondents/defendants have contested the suit, denying the case of the revision petitioner/plaintiff. In the above said circumstances, the revision petitioner is not entitled to compel the 4th respondent/4th defendant to give evidence on the side of the revision petitioner/plaintiff. To substantiate the contention of the respondents, the learned counsel appearing for the respondents relied on a decision of this Court reported in (2003) 1 MLJ 556 (V.P. Subramaniam v. P. Saraswathi).

A careful reading of the decision of this Court reported in V.K. Periasamy @ Perianna Gounder Vs. D. Rajan, relied on by the learned counsel for the revision petitioner revealed that in the above said suit, there are 7 defendants, but, the 4th defendant alone contested the suit. Therefore, the plaintiff has filed an application seeking permission to examine the 1st defendant as plaintiff side witness. This Court has discussed about the facts of the case and held that since the above said 1 st defendant was not contested the case and supported the plaintiff and in the above said circumstances, by applying discretionary powers of this Court, permitted to examine witness on the side of the plaintiff. But, in the instant case, the revision petitioner/plaintiff has filed a suit against four defendants and the permission sought for to examine witness has contested the suit and also objected the above said application filed by the revision petitioner. In the above said circumstances, the decision relied on by the revision petitioner is not applicable to the facts of the present case.

The decision of this Court relied on by the learned counsel for the respondent reported in (2003) 1 MLJ 556 (V.P. Subramaniam v. P. Saraswathi), in which, it reads as follows:-

"13. Coming to the contention of the learned counsel for the petitioner that the petitioner has got every right to file the petitions of present nature seeking a direction to examine the respondent as a witness, this Court is of the view that no party to the proceedings can be compelled to give evidence in a Court of law at the instance of the other. It is always open to the Court to draw an adverse inference by the conduct of the party, who keeps away from the witness box. When that be the principle, it is not known as to how a defendant in the suit can be permitted to be examined as a plaintiff witness. Virtually, it may amount to compel the defendant to appear as a witness of the plaintiff and depose against her. If not, she will be subjected to unnecessary questions, which may not be warranted in the nature of the proceedings."

On a careful reading of the above said decision and also as per the provisions of CPC, this Court is of the view that the revision petitioner is not entitled to compel the 4th respondent/4th defendant to give evidence on the side of the revision petitioner. The finding of the trial court is not illegal or perverse and therefore, there is no need to interfere with the above said findings.

The learned counsel appearing for the revision petitioner at the end of his submissions reported that if the above said alleged witness i.e., 4th respondent/4th defendant is willing to give evidence voluntarily, this Court may be permitted to examine the above said witness. This Court is of the view that it is not proper to permit the revision petitioner to examine the above said witness. If the above said witness voluntarily willing to depose in favour of the revision petitioner, the concerned trial court may decide and this Court is not given any opinion on the above said prayer of the revision petitioner. In the result, this revision petition is dismissed and confirmed the order passed by the trial court in I.A. No. 1083 of 2009. No order as to costs.