Animadverting upon the order dated 08.07.2008 passed by the learned III Asst. City Civil Judge, Chennai, in I.A.No.10437 of 2007 in O.S.No.939 of 2004, this civil revision petition is focussed.
2. Heard both sides.
3. The facts giving rise to filing of this revision as stood exposited from the records could be succinctly and precisely set out thus:
The respondent/plaintiff filed the suit for recovery of money as against the revision petitioner/defendant herein. During trial, the plaintiff examined herself as P.W.1 and cross examined on various dates. According to the petitioner/defendant during cross examination of P.W.1, the plaintiff's witness namely one David was present in the Court hall on 26.06.2007. After completion of the cross examination of P.W.1, when David was sought to be put into box for being examined as a witness on the plaintiff's side, the learned counsel for the defendant objected to it. According to the revision petitioner, the learned Judge remarked thus:
".... And requested before this Hon'ble Court to note down the name of the attesting witness and not permit him to give evidence. This Hon'ble Court also stated that, now it is not necessary to note down the name of the attesting witness, while seeing the face itself we can make out. If the witness came to the next hearing asked to mention the same. And this Hon'ble Court has adjourned the matter on 04.07.2007. On 04.07.2007 the same attesting witness Mr.David came and tried to depose the evidence. Immediately the same was brought into the knowledge of this Hon'ble Court and I have filed the above said application."
4. The defendant filed I.A.No.10437 of 2007 to disqualify the witness from being examined as a witness in this case. Meanwhile, there was change of incumbency in the post of Presiding Officer of that Court and the successor passed order negativing the contention of the revision petitioner/defendant herein. Being aggrieved by and dissatisfied with the order of the lower Court, this revision has been filed on various grounds.
5. The learned counsel for the defendant would submit that the witness David who heard the cross examination of P.W.1 is disqualified from being examined as witness. But the trial Court was of the opinion that he might not have heard the full cross examination as cross examination was held on three days and on the last day, so to say on 26.06.2007 no significant cross examination might have been conducted etc.
6. The learned counsel for the revision petitioner also cited the decision of the Kerala High Court reported in AIR 1966 KERALA 316 [Dr.Kasi Iyer v. State of Kerala]. An excerpt from it would run thus:
"5.I respectfully agree with the view expressed in these cases and hold that to ensure a fair trial even in the absence of any specific provision in any enactment the Court has inherent power to order that no witness who has to give evidence should be present when the deposition of the other witnesses are being taken until he himself is examined as a witness.
6. In Lalmani v. Bejai Ram, AIR 1934 All 840, Bennet, J., held that the universal practice in the Courts in India is that witnesses should be called in one by one and that no witness who is to give evidence should be present when the deposition of a previous witness is being taken and a breach of this rule may well be termed an abuse of the process of the Court and, therefore, under S.151, C.P.C. the Court has inherent power to prevent that abuse and the Court can order that such witness should not be heard as a witness...."
Accordingly he prays to disqualify David from being examined as witness.
7. Whereas the learned counsel for the respondent/plaintiff would submit that the counter was filed in I.A. to the effect that witness David was sitting outside the Court and not inside the Court; the said witness attested the pronote and hence his cross examination is very much required.
8. Considering the pro et contra, I am of the considered opinion that in matters of this nature, this Court being the revisional Court would not be able to come to a conclusion on facts as to whether the witness David was present at the time of cross examination of P.W.1 or not. However, as found set out in the cited decision supra evidentiary value of David would get reduced to a significant extent if it is established that he was in the Court at the time of cross examination of P.W.1.
8. As such I am of the considered opinion that witness David could be examined as a witness, and he could be cross examined to the effect that he was present in the Court hall and the defendant also is permitted to adduce evidence to prove his contention that he was present on that day in the Court hall. It is for the trial Court to consider the factual aspects and if it is found that at the time of cross examination or part of the cross examination of P.W.1 the witness David was present in the Court hall, the evidentiary value of the deposition of David would get reduced significantly.
Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
gms To III Asst. City Civil Court, Chennai