G.BALAJI Vs. SARAVANASAMY

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order passed by the Trial Court dismissing the petition filed for eschewing the evidence of a witness for not submitting himself for continuation of cross-examination.

(2.) Defendant is the Revision Petitioner. Respondent/Plaintiff in this revision filed a suit for permanent injunction in the year 2013. The suit was dismissed for default and restored on application filed by him in the year 2017. During trial the plaintiff examined himself as P.W.1. On 26/10/2017 the plaintiff filed a proof affidavit and the matter was posted for marking documents on 9/11/2017. On three occassions, subsequent to that, he was absent and on two occassions he was present but the matter was adjourned. At last on 5/2/2018, Ex.A1- A6 were marked and for marking of other documents it was adjourned to 22/2/2018. Again for next three hearings P.W.1 was absent and on 27/6/201, as per endorsement made, it was closed for marking of documents and the matter was posted for cross-examination on 3/7/2018. But P.W.1 was not present and the hearing was adjourned to 6/7/2018, on which day, P.W.1 was cross examined in part and adjourned for further cross continuation. The matter was adjourned to 23/7/2018, 11/8/2018, 29/8/2018 on which dates he was called absent. Again on 7/9/2018, cross- examination was conducted in part and adjourned for continuation of cross-examination on 19/9/2018. The witness absented himself on 19/9/2018, 3/10/2018, 9/10/2018, 31/10/2018, 8/11/2018, 21/11/2018 and 4/12/2018. On 4/12/2018, the evidence of P.W.1 was closed and the suit was posted for further evidence of plaintiff side witnesses on 13/12/2018 and adjourned as a last chance on 18/12/2018. It is pertinent to note that on all hearings, counsel for both sides were present.

(3.) The petitioner filed a petition on 18/12/2018 for eschewing the evidence of P.W.1 as he was not subjecting himself for cross examination on several occasions and evaded to answer questions by cross-examination. The Trial Court dismissed the petition on the ground that the witness was present on two hearing and cross examination was made and hence presumption is available u/s. 114 of Evidence Act. Therefore, dismissed the petition as it is not necessary to reject the above evidence observing that the petition has been filed with an intention to drag on the proceedings.