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P.M. Elavarasan v/s C.U. Shah Charities Rep.byt its Trustee & Others

    O.S.A.No.123 of 2019
    Decided On, 01 July 2019
    At, High Court of Judicature at Madras
    For the Appellant: S. Muthudurai, Advocate. For the Respondents: M. Balasubramanian, Advocate.

Judgment Text

(Prayer: Original Side Appeal filed under Order XXXVI Rule 1 of O.S. Rules Read with Clause 15 of Letters Patent against the Fair and Decretal order dated 19.03.2018 passed in Application No.1458 of 2018 in C.S.No.803 of 2011.)

N. Kirubakaran, J.

The appeal has been preferred against the dismissal of the appellant’s application filed under Order XIV Rule 8 (Xii) of Original Side Rules seeking to strike off the evidence of the appellant which was recorded on 23.01.2017 and 19.06.2017 and striking out the Exhibits marked as Ex.P.30, Ex.P.31 & Ex.P.32 and to strike out the averments made in Paragraph No.6 of the proof affidavit filed by PW2.

2. The suit in C.S.No.803 of 2011 is for a declaration that the plaintiff is the absolute owner of the property, for a declaration that the sale deed executed by the 2nd defendant in favour of defendants 3 to 5 dated 14.06.2010, the sham and nominal and not binding on the plaintiff in as much as the 2nd defendant has no salable interest over the said property, for a declaration declaring the purported sale deed executed by defendants 3 to 5 on 08.08.2011 in favour of the 6th defendant as sham and nominal and not binding on the plaintiff and for a consequential injunction restraining the defendants from interfering with the plaintiff exclusive possession and enjoyment of the property or in the alternative for recovery of possession of the property. The 6th defendant in the suit, viz., C.S.No.803 of 2011, has filed another suit in C.S.No.159 of 2012 seeking a declaration of his title and for permanent injunction. These suits went for trial, the 6th defendant in C.S.No.803 of 2011 was examined as DW1.

3. During the course of the evidence, in cross-examination, the documents, viz., Exs.P.30, P31 and P32 were No.13533 of 2011 in O.S.No.6469 of 2011, wherein the application for injunction filed by the said witness, who was also the plaintiff in the said suit, directing maintenance of status quo by the parties. The witness as well as the plaintiff in the present suit are the parties to the said proceedings. Ex.P.31 is the certified copy of the order passed in O.S.A.Nos.328 and 329 of 2012. The said appeals have been filed by the said witness, viz., DW1 against the orders passed in Transfer Application No.1823 of 2012 and Original Application No.187 of 2012. While the appeal against the order in Transfer Application No.1823 of 2012 has been dismissed as infructuous. This Court had only directed the maintenance of status quo, as directed by the City Civil Court in I.A.No.13533 of 2011 in O.S.No.6469 of 2011, while disposing of the appeal against O.A.No.187 of 2012. The third document, viz., Ex.P.32, which is the sale deed executed by DW1 in favour of one Siva Chidambaram, with reference to a major portion of the suit property subject matter of C.S.No.803 of 2011.

4. It is seen that only to strike out those exhibits and averments the application has been filed and the said application was dismissed by the learned Single Judge stating that the documents have been admitted by the witness in the course of cross examination and there is no violation of any of the rules as contended by the learned Counsel for the applicant/appellant.

5. Heard Mr.S.Muthudurai, learned Counsel for the appellant and Mr.M.Balasubramanian, learned Counsel for the respondents and perused the records.

6. Though the learned Counsel for the appellant would submit that marking of the documents in the cross examination of DW6 by the respondent/plaintiff was without getting leave of the Court as required under Order IX Rule 8 of the Original Side Rules, it is evident from Order VII Rule 14 of the Civil Procedure Code that there cannot be any prohibition to mark documents in the cross examination of the parties. It is a settled law that in cross examination, any document can be marked provided, the witness admits the execution of the document as noted in Paragraph No.7 of the impugned order.

7. Moreover, the learned Single Judge relied upon the Division Bench Judgment of this Court in “K.V.Kuppuswamy Ayyangar and another V. The State of Tamil Nadu, rep. by its Chief Secretary, Madras and others’ reported in ‘1991 (2) MLJ 480’ , in which it has been held that the power under Order VI Rule 17, is available to this Court for allowing amendment of the plaint. The Division Bench after considering the scope of Rule 3 of Order I of the Original Side Rules, held that the High Court will have the power of amend the plaint, under Order VI Rule 17 of the Code of Civil Procedure, dehors the absence of a provision in the Original Side Rules.

8. The learned Judge also relied upon Section 144 of the Evidence Act, relates to evidence as to matters in writing and it enables question being put the witness under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and for that purpose, it enables the document being produced, Section 145 of the Evidence Act, enables cross-examination of witness as to previous statements made by him in writing or reduced into writing, and if the witness is to be contradicted by the said writing.

9. Similarly, the learned Judge referred to Section 145 of the Evidence Act which requires the attention of the witnesses, must be drawn to the writing before he/she could be questioned on the writings. Therefore, production of documents in cross-examination cannot be said to be totally barred, either by the Original Side Rules or the Rules contained in the Code of Civil Procedure. Hence, the learned Jud

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ge rightly observed that the rules are procedural in nature and must give way to substantive law viz., The Evidence Act. Further, Section 144 categorically permits the parties to mark any document in the cross examination and has been rightly relied on by the learned Single Judge. 10. When Order VII Rule 14 of the Civil Procedure Code enables the respondent/plaintiff to mark the document, there is nothing wrong in doing so and therefore, the order passed by the learned Single Judge is sustainable and therefore appeal stands dismissed. 11. Accordingly the appeal fails and the same is dismissed. No costs.