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Madras High CourtCRP/1027/2024dismissed

Ellamalli v. Krishnaveni

2024-03-20Honourable Mr Justice S. Sounthar6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.03.2024

CORAM:

THE HONOURABLE MR.JUSTICE S.SOUNTHAR CRP.Nos.1027 and 1033 of 2024 and CMP No.5355 of 2024 Ellamalli ... Petitioner in both CRP's Vs.

1. Krishnaveni

2. Murugan @ Muruganantham

3. Sheela @ Gomathi

4. Vinoth @ Vignesh

5. Saraswathi Munu @ Parameshwaran (died)

6. Manjula Devi (died)

7. Jansi @ Jansirani

8. Barathi

9. Sathya

10. Arumugam

11. Vasantha @ Vasanthakumari Selvalingam (died)

12. Selvi

13. Kalaivani

14. Kalpana

15. Kavimani

...Respondents in both CRP's.

PRAYER in CRP.No.1027 of 2024 Civil Revision Petition filed under Article 227 of the Constitution of India,praying to set aside the judgment and decree 1/6

dated 20.09.2023 in I.A.No.540 of 2022 in O.S.No.2 of 2009 passed by the Hon'ble Principal Sub- Court, Tindivanam.

PRAYER in CRP.No.1027 of 2024 Civil Revision Petition filed under Article 227 of the Constitution of India,praying to set aside the judgment and decree dated 20.09.2023 in I.A.No.541 of 2022 in O.S.No.2 of 2009 passed by the Hon'ble Principal Sub- Court, Tindivanam.

For Petitioner in both CRP's :Mr.M.Kalaiyarasan for Mr.A.Parthasarathi Respondents in both CRP's : Mr.T.Dhanasekaran for R1 to R4 COMMON ORDER These Civil Revision Petitions are filed challenging the orders passed by the Trial Court dismissing the applications filed by the petitioner to re-open the case and recall D.W.3.

2. The respondents 1 to 4 filed a suit for partition against the petitioner and other respondents. The trial in the suit is already over and posted for arguments. At this stage, the present application has been filed by the petitioner/11th defendant in the suit to re-open the case and recall D.W.3. In the 2/6

affidavit filed in support of the application, it is stated by the petitioner that suit property originally belonged to one Theerthamalai and he mortgaged the suit properties in favour of defendants 9 and 10 and died without clearing the mortgage debt. Therefore, the legal heirs of Theerthamalai namely defendants 1 to 8 sold the suit properties in favour of 9th defendant. It is further stated by the petitioner/11th defendant that she wants to mark the mortgage deed dated 12.10.1982 , promissory note dated 28.12.1981 etc., as an exhibits in the suit and hence, D.W.3 shall be recalled.

3. In the affidavit filed in support of the application for recall of D.W.3, the petitioner has not stated any reason for her failure to mark those documents when D.W.3 was examined. It is seen from the impugned order that sale deed allegedly executed by legal representatives of Theerthamalai in favour of 9th defendant was already rejected by the Trial Court for want of registration in I.A.No.390 of 2018 by order dated 28.02.2019. Thereafter, again the petitioner filed a memo for marking of the said documents and the same was rejected by the Trial Court on 03.09.2019.When the alleged unregistered sale deed executed by legal representatives of Theerthamalai in 3/6

favour of 9th defendant was already rejected by the Trial Court, the petitioner is not entitled to recall D.W.3 for the purpose of marking the documents mentioned in the affidavit which are connected with the very same transaction. The petitioner, in her affidavit, has not given any reason for her failure to produce and mark the said documents when D.W.3 was examined. When unregistered sale deed in favour of 9th defendant dated 01.04.1991 was produced before the Trial Court, the petitioner could have produced the earlier mortgage deed, promissory note etc., for the purpose of marking. Having failed to do so, the petitioner is not entitled to seek re-open of the case and recall of D.W.3 when the matter is posted for arguments after completion of trial.

Therefore, the Trial Court rightly came to the conclusion that petitioner has not made out any case to re-open the case and consequently, dismissed the petitions. I do not find anything to interfere with the orders passed by the Trial Court. Accordingly, both the Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petition is closed. 20.03.

To The Principal Subordinate Judge, Tindivanam. 5/6

S.SOUNTHAR , J.

nr CRP.Nos.1027 and 1033 of 2024 and CMP No.5355 of 2024 20.03.2024 6/6