MANIBUSHAN RAO Vs. A SURYAKANTAM

JUDGEMENT

(1.) O S. 165/78 on the file of the First Additional Subordinate Judge, Visakhapatnam was between one Alapati Suryakantam as plaintiff and the present revision-petitioner as the defendant. The dispute relates to some properties. While Suryakantam was deposing as P. W. I, the defendant was confronting her with Exs. B-3 to B-5, letters allegedly written by plaintiff's husband to the plaintiff. It was argued before the Sub-Judge that they are inadmissible in evidence under Sec. 122 of the EVIDENCE ACT, 1872. The learned Sub-Judge upheld the objection raised by the plaintiff and held that they are inadmissible and he therefore directed those letters to be excluded from consideration. The legality of that order is questioned in this revision. Sec. 122 of the EVIDENCE ACT, 1872 reads as under :

(2.) In Queen-Empress vs. Donaghue & Another the question arose whether a communication sent by the accused to his wife which was recovered by the police during investigation while making a search could be proved by the prosecution. It was held that it can be relied upon by the prosecution as the wife was not being examined in the case and was neither compelled to disclose or being permitted to disclose. In Ramchandra Shankarshet Uravane vs. Emperor, the husband was prosecuted for an offence under Sec. 302, I.P.C. At the time the offence was committed Lilavati, one of his wives was present. The prosecution wanted to prove some statements made by the accused to his wife and this the Court did not permit the prosecution to prove through the evidence of Lilavati. In Appu alias Ayyanar Padayachi vs, States an extra judicial confession made by the accused to his wife P.W. 1 in the presence of P. Ws. 2 to 4 was sought to be proved bv the prosecution. It was held that the said confession cannot be proved through P. W. 1, but it can be proved through P. Ws. 2 to 4. In M. C. Verghese vs. T. J. Potman one Rathi, daughter of Verghese was married to one Ponnan wrote some letters to Rathi which according to Verghese were defamatory. Verghese filed those letters and objection was taken that those letters are inadmissible in evidence The Supreme Court held :

(3.) Mr. P. L. N. Sarma, the learned Counsel for the respondent, relies on the first sentence in the above observation and submits that Sec. 122 of the EVIDENCE ACT, 1872 bars completely such communications. In my view the entire statement of law has to be read as a whole and not in the disjointed fashion as has been attempted at. It is no doubt true thate the plaintiff cannot be asked about Exs. B-3 to B-5 but it is a different thing to say that Exs. B-3 to B-5 are totally inadmissible in evidence and have to be excluded from consideration. In making the order in that fashion the learned Subordinate Judge has committed an irregularity which requires to be cured under Sec.115 of the Civil Procedure Code as to allow that order to remain would occasion a failure of justice or cause irreparable injury to the defendant who is relying on the contents of Exs. B-3 to B-5 as supporting his case.