Allowed

Raja Ramalingam v. Malathi

Madras HC8 Oct 2020CRP/2695/2018

Case brief

AI extract

What is this about?

This revision petition challenged the dismissal of an application to recall a deponent for cross-examination. The High Court held that the trial court erred in concluding the applicant lacked an adverse case, finding the written statement raised issues regarding the validity of the sale deed. The petition was allowed.

What did the court decide?

The Civil Revision petition allowed; the order of the trial court dismissed; the application (I.A. No.136 of 2018) allowed.

Raja Ramalingam Vs Malathi — Civil Procedure and Limitation | Madras HC (2020)

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CRP (PD) No.2695 of 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 08.10.2020

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

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CRP (PD) No.2695 of 2018
and CMP No.15963 of 2018
Raja Ramalingam ... Petitioner
Vs
1. Malathi
2. Ilamathi
3.Arumugham
4. Muniandi
5. AVK Trust,
by its President Sakthivel
6. Maheswari
7. Rajan
8. Anjammal
9. Govindasamy
Ilanjiyam (died)
10. Ayyakannu
11. Prathibha
12. Periar @ Kaliaperumal
13. Jothi
1/7

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http://www.judis.nic.in

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CRP (PD) No.2695 of 2018

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Santhi

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Sathiaseelan

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Arunachalam

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Prayer: The Civil Revision petition filed under Article 227 of the Constitution of India, praying to allow the revision petition and set aside the fair and decretal order dated 04.07.2018 passed in I.A.No.136 of 2018 in O.S. No.52 of 2013 on the file of the II Additional District and Session

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Judge, Chidambaram.

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For Petitioner : Mr.R.Gururaj For Respondents : No appearance O R D E R

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This revision is against an order of the trial Court dismissing the application filed by the 1^st defendant in O.S.No.52 of 2013, seeking to recall DW1 ( the 3^rd defendant in the suit) for cross examination by the 1^st defendant.

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defendant. She has impugned certain alienations made by the 1^st defendant

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http://www.judis.nic.in

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CRP (PD) No.2695 of 2018

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in favour of the 3^rd defendant and others. The 1^st defendant has filed a written statement contending that the 3^rd defendant practised Witch-craft on him and obtained the Sale Deeds when he was under the influence of the 3^rd defendant. According to him, the sales were not voluntary. Having filed a written statement on these lines, the 1^st defendant's counsel was absent on the day when the 3^rd defendant was examined as DW1 and was cross examined by the plaintiff's counsel. Recording the absence of the counsel for the 1^st defendant, the trial Court had closed the evidence of DW1 and posted the matter for further evidence. It is at this stage, the 1^st defendant filed the above application seeking to reopen the evidence of DW1, recall him for further cross examination on his side.

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The Trial Court dismissed the application, concluding that the

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1^st defendant had not impugned the alienations in the written statement filed by him and therefore he has no adverse case as against the 3^rd defendant in order to enable him to cross examine the 3^rd defendant as per Section 138 of the Evidence Act.

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http://www.judis.nic.in

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CRP (PD) No.2695 of 2018

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I have heard Mr.R.Gururaj, learned counsel appearing for the

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petitioner. The respondents though served, are not appearing either in person or through counsel duly instructed.

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Mr.R.Gururaj, learned counsel appearing for the petitioner/1^st

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defendant would take me through the written statement filed in the suit to contend that the 1^st defendant had raised an issue regarding the validity of the Sale Deed when the issue has also been framed in the suit. That being the case, according to the learned counsel, the trial Court was not justified

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in observing that the 1^st defendant has not pleaded an adverse case that of the case of the 3^rd defendant. He would also point out that under Section 138 of the Evidence Act, as an adversery he has got a right of cross examination.

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I have considered the submissions of the learned counsel.

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I see considerable force in the arguments of the learned counsel

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to the effect that the trial Court was not right in concluding that the 1^st

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http://www.judis.nic.in

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CRP (PD) No.2695 of 2018

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defendant has not pleaded an adverse case to the claim of the 3^rd defendant. The 1^st defendant even in the written statement had stated about the circumstances under which the sale deed came into being. It is also seen from the records that the suit filed by the 3^rd defendant based on an alleged Sale agreement was also dismissed and an appeal against that Judgment was also dismissed confirming the Judgment and decree in O.S.No.1 of 2009.

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In view of the above facts, I am constrained to observe that the trial Court was not right in dismissing the application holding that the 1^st defendant has no right of cross examination of DW1. It is seen from the records that there are certain adverse claims made by the 1^st defendant against the 3^rd defendant and therefore, the 1^st defendant would always have a right to cross examine the 3^rd defendant who had deposed as DW1.

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In view of the above, this Civil Revision petition is allowed. The order of the trial Court is set aside. I.A No.136 of 2018 will stand

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allowed. The trial Court shall fix a date to recall DW1 for cross

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http://www.judis.nic.in

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CRP (PD) No.2695 of 2018

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examination by the 3 rd defendant. The 3 rd defendant shall cooperate with the
Court in completing the Cross examination on the day on which the witness
appears for cross examination, without seeking further time. The trial Court
will do well to fix a date for the appearance of the 3 rd defendant and ensure
his presence on the said date. No costs. Consequently, connected
miscellaneous petition is closed.
08.10.2020
vum
Index: Yes/No
Speaking order / Non speaking order
To
The II Additional District and Session Judge,
Chidambaram.

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http://www.judis.nic.in

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CRP (PD) No.2695 of 2018

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R.SUBRAMANIAN, J.

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vum

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CRP (PD) No.2695 of 2018
and CMP No.15963 of 2018
08.10.2020

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7/7

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http://www.judis.nic.in

Raja Ramalingam v. Malathi

Case brief

What is this about?

What did the court decide?

Raja Ramalingam v. Malathi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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