Mrs Hazel Felicia Peres Vs Mrs. Jacqueline Mary Alphonso Nee Peres

MRS. HAZEL FELICIA PERES W/O MR. GREGORY FREDRICK PERES AGED ABOUT 52 YEARS R/AT HILL STREAK APARTMENTS FLAT NO.1001, N H 66 GORIGUDDA, MANGALURU-575002.

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(BY SRI. M. SUDHAKAR PAI, ADV.,)

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…PETITIONER

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AND:

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MRS. JACQUELINE MARY ALPHONSO NEE PERES D/O LATE MICHAEL PERES AGED ABOUT 51 YEARS R/AT BELMONT HOUSE BALMATTA ROAD MANGALURU-575002 DAKSHINA KANNADA.

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MR. GREGORY FREDRICK PERES S/O LATE MICHAEL PERES AGED ABOUT 57 YEARS R/AT BELMONT HOUSE BALMATTA ROAD, MANGALURU-575002 DAKSHINA KANNADA.

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…RESPONDENTS

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(BY SRI.VIREN PERES, ADV., FOR SMT. SHABINA BEGUM, ADV., FOR R2 V/O/DTD:30.07.2025, NOTICE TO R1 IS H/S)

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NC: 2026:KHC:25672 W.P. No.51071/2019

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HC-KAR

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 06.08.2019 ON MEMO DTD.02.07.2019 FILED BY THE PETITIONER, IN O.S.NO.311/2017, ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE AND CJM, MANGALURU VIDE ANNEXURED TO THE WRIT PETITION & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed challenging the order dated 06.08.2019 in OS.No.311/2017 by the II Additional Senior Civil Judge and CJM, Mangaluru (for short ‘the trial Court’).

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Sri.M.Sudhakar Pai, learned counsel appearing for the petitioner/plaintiff submits that the petitioner had filed an affidavit in lieu of examination-in-chief as PW1 and later, she filed a memo stating that she does not propose to further examine herself in the case and sought prayer to eschew her evidence from consideration. The trial Court, under the impugned order, rejected the said prayer. It is submitted that the petitioner/plaintiff is a dominus

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3 - NC: 2026:KHC:25672 W.P. No.51071/2019

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HC-KAR

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litis and can always state before the trial Court that she does not intend to tender herself for cross-examination. If such a stand is taken, then her evidence is required to be eschewed. In support of his contention, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Rattan Dev v. Pasam Devi¹ and seeks to allow the petition.

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Per contra, Sri.Viren Peres, learned counsel for Smt.Shabina Begum, learned counsel appearing for respondent No.2 supports the impugned order of the trial Court and submits that the plaintiff cannot stay away from

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the proceedings after filing the affidavit in lieu of examination-in-chief. She should establish her case by tendering herself to cross-examination by the defendants. In her absence before the trial Court, the suit cannot be decreed as such. It is submitted that the petitioner/plaintiff later cannot come and say that she will adduce evidence as she has refused to tender herself for

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1 (2002) 7 SCC 441

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NC: 2026:KHC:25672 W.P. No.51071/2019

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HC-KAR

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cross-examination. Accordingly, he seeks to dismiss the petition.

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I have heard the arguments on both sides and

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meticulously perused the material available on record.

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The petitioner/plaintiff has filed a suit in OS.No.311/2017 seeking partition and separate possession of the suit schedule properties. The said suit was opposed by the defendants by filing a written statement. The records indicate that the plaintiff filed her affidavit in lieu of examination-in-chief as PW1 and later she failed to remain present for cross-examination. The records further indicate that the plaintiff has filed a memo dated 02.07.2019 stating that she does not propose to further examine herself in this case, hence her affidavit of chief examination may be eschewed from consideration. The said memo was rejected with a cost by the trial Court. Insofar as eschewing the affidavit evidence of the plaintiff, which is filed in the form of affidavit cannot be allowed as

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5 - NC: 2026:KHC:25672 W.P. No.51071/2019

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HC-KAR

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the trial Court is required to look into the affidavit at the time of final disposal of the suit. It is important to note that neither the Code of Civil Procedure, 1908 nor the Indian Evidence Act, 1872 contains any provision for eschewing of witnesses. Insofar as the admissibility of the affidavit as evidence is concerned and the question as to whether the plaintiff has admitted to certain facts, the same is required to be considered by the trial Court while deciding the suit. The trial Court under the impugned order has rightly come to conclusion that if the plaintiff has failed to tender herself for cross-examination, her evidence cannot be looked into. Hence, question of eschewing her evidence could not arise. I am of the view that the said finding of the trial Court is in consonance with the law and does not call for any interference.

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The judgment relied upon by the learned

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counsel for the petitioner has no application to the facts and circumstances of the case on hand. In the aforesaid case, the facts itself reveals that the plaintiff has failed to

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NC: 2026:KHC:25672 W.P. No.51071/2019

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HC-KAR

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examine himself before the trial Court; however, his GPA holder has been examined. Hence, the said case on the facts is distinguishable to the case on hand. It is not in dispute that the plaintiff is a dominus litis . However, once she has filed affidavit in lieu of examination-in-chief, either she has to tender herself for cross-examination or her evidence can be ignored by the trial Court while considering the suit on merits. For the aforementioned reasons, I do not find any merit in the present case. The writ petition is devoid of merit and the same is accordingly

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dismissed .

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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ABK

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List No.: 1 Sl No.: 26

Mrs Hazel Felicia Peres v. Mrs. Jacqueline Mary Alphonso Nee Peres

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Mrs Hazel Felicia Peres v. Mrs. Jacqueline Mary Alphonso Nee Peres

Case brief

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