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Madras High CourtCRP(MD)/168/2018allowed

Maruthathal, v. Krishnasamy

2018-07-03Honourable Mr Justice M.V. Muralidaran4 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.07.2018

CORAM:

THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN C.R.P.(PD)(MD) Nos.168 to 170 of 2018 and C.M.P.(MD) No.760 of 2018

1. Maruthathal

2. Saraswathi

3. Murugaiah

4. Kasipandian

5. Velladurai

6. Azhagudurai

7. Kasipandian ... Petitioners/Petitioners/Defendants -vsKrishnasamy ... Respondent/Respondent/Plaintiff Prayer in C.R.P.(MD) 168/2018: Civil Revision Petition filed under Article 227 of Constitution of India praying to set aside Fair and Decretal order dated 24.11.2017 passed in I.A.No.578 of 2017 in O.S.No.648 of 2011 on the file of the Additional District Munsif Court, Tenkasi, Tirunelveli District and allow the present Civil Revision Petition.

Prayer in C.R.P.(MD) 169/2018: Civil Revision Petition filed under Article 227 of Constitution of India praying to set aside Fair and Decretal order dated 24.11.2017 passed in I.A.No.579 of 2017 in O.S.No.648 of 2011 on the file of the Additional District Munsif Court, Tenkasi, Tirunelveli District and allow the present Civil Revision Petition.

Prayer in C.R.P.(MD) 170/2018: Civil Revision Petition filed under Article 227 of Constitution of India praying to set aside Fair and Decretal order dated 24.11.2017 passed in I.A.No.580 of 2017 in O.S.No.648 of 2011 on the file of the Additional District Munsif Court, Tenkasi, Tirunelveli District and allow the present Civil Revision Petition.

For Petitioners : Mr.R.J.Karthick For Respondent : Mr.V.Perumal ***** C O M M O N O R D E R The revision petitioners are the defendants in O.S.No.648 of 2011 on the file of the Additional District Munsif Court,

Tenkasi, Tirunelveli District and in the suit, the plaintiff/respondent herein sought for declaration, permanent injunction, etc. During pendency of the suit, revision petitioners / defendants took out three applications in I.A.Nos.578 to 580 of 2017 in O.S.No.648 of 2011 for reopening, recalling D.W.1 for examination and reception of additional documents respectively. Those applications were dismissed by the Trial Court on the ground that the applications were mainly filed to fill up the lacuna and challenging the same, the petitioners / defendants are before this Court.

2. It is the main case of the revision petitioners that as per the provisions of Order XVIII Rule 17 CPC, power is vested with the Court to recall any witness either on its own motion or on the application filed by the parties to the suit. But, the Trial Court, instead of exercising its discretionary power, has simply dismissed the application. It is the further case of the revision petitioners that the plaintiff disputed the measurement against the recitals of the document registered during the relevant point of time. Further, the relevant document dated 22.11.2004 has been traced out recently, which could not be produced at the time.

3. The revision petitioners state that the examination of witnesses has been completed and the case is posted for argument on the side of the defendants. If the vital document has not been marked and D.W.1 has not been examined in connection with the said document, much prejudice would caused to the defendants and for that purpose, reopening of the case is inevitable. It is further stated that it is mandate on the part of the Trial Court to ensure the extension of balance of convenience on both sides and the refusal of the Trial Court in reopening, recalling of D.W.1 and reception of documents will definitely be prejudicial to the defendants and therefore, the said order needs the intervention of this Court for rendering substantial justice to the defendants.

4. Learned counsel for the plaintiff/respondent herein has strenuously contended that the main intention of the petitioners is to drag on the proceedings. The 1st defendant, having deposed during cross examination that she was not aware of such document, has now been asking for marking of the said document, which is nothing, but an abuse of process of law. There is no pleadings raised with respect to the subject document in the written statement and either the defendants or their vendors were not parties to the documents and as such, seeking permission to mark the said document is against the provisions of law. Therefore, it is prayed for dismissal of these civil revision petitions.

5. Heard the learned counsel on either side and also perused the material documents available on record.

6. The revision petitioners / defendants have invoked several provisions of law in support of their respective claim. In the plaint, it is averred that the plaintiff worked in Indian Army and his brother has also been working in an alien country; that the patta in respect of 2nd schedule property was wrongly issued in the name of the plaintiff and defendants 1 to 5, though the 2nd schedule property exclusive belonged to the plaintiff, which fact was known to the plaintiff only after return from the Army, whereas it was stated in the written statement that the plaintiff, by showing wrong measurement, has been attempting to grab the properties of the defendants, who are illiterates and poor and actually, there is no property in existence as shown in the sale deed and therefore, the plaintiff had filed the suit by raising averments in the air.

7. Learned counsel for the respondent/plaintiff has contended that the petitioners herein should not be permitted to fill up the lacuna by allowing these petitions and in support thereof, has placed much reliance on the decision of the Hon'ble Supreme Court in the case of Vadiraj (dead) through LRS vs. Sharad Chandra Abhaker Gogate, reported in 2009 (4) SCC 410, wherein it has been held that the provisions of Order 18 Rule 17 CPC cannot be sought to be used to fill up the omission in the evidence of a witness, who has already been examined.

8. It is seen from the order of the Trial Court that the chief and cross examinations were already completed and the case is pending for argument of the learned counsel for the defendants. It is pertinent to mention here that to err is human and the inadvertent omission cannot be taken as a serious mistake committed by the defendants in not examining D.W.1 and not marking the document on earlier occasion and perhaps, they would not have obtained the documents at the relevant point of time. In the application filed by the defendants itself, it has been averred that in the event of non examination of D.W.1 on the document, they will be put to irreparable loss, injury and hardship. Therefore, finding much force in the contention raised by the learned counsel for the petitioners and to meet out the ends of justice, this Court is of the view that the orders of the Trial Court are liable to be set aside.

9. In the result, a) these Civil Revision Petitions are allowed, b) the separate orders dated 24.11.2017 passed in I.A.No.578 to 580 of 2017 in O.S.No.648 of 2011 by the learned Additional District Munsif, Tenkasi, Tirunelveli District, are hereby set aside;

c) the Trial Court is directed to reopen the case for producing the documents to prove the measurement (1 padi = 1 cent) through Government documents, with further direction to recall D.W.1 for the purpose of examination by the defendants and on such recall, the defendants shall examine D.W.1 relating to the documents and complete their examination within a period of three weeks from the date of receipt of a copy of this order; d) the Trial Court, upon completion of the entire exercise, shall conduct the trial of the case in O.S.No.648 of 2011 and dispose of the same within a period of four months from the date of completion of examination, without giving any unnecessary adjournment to either parties and the parties shall also cooperate for early disposal of the suit within the stipulated period prescribed above.

No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(AS) /True Copy/ Sub Assistant Registrar(CS-III) To:

1. The Additional District Munsif, Tenkasi, Tirunelveli District.

2. The Record Keeper,(2 copies) VR Section, Madurai Bench of Madras High Court, Madurai.

+1cc to Mr.R.J.Karthick, Advocate Sr.No.70949 +1cc to Mr.V.Perumal, Advocate Sr.No.70932 AR VB/KAK/SAR3/14.08.2018/4P/6C C.R.P.(PD)(MD) Nos.168 to 170 of 2018 03.07.2018