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2004 DIGILAW 1078 (MAD)

M. Kayethey Ajam v. Ananthi alias Ameena Bivi

2004-08-16

V.KANAGARAJ

body2004
ORDER :- Both the Civil Revision petitions are directed against the fair and decretal orders both dated 3-1-2003 respectively made in I.A. Nos. 103 and 104 of 2002 in A.S. No. 99 of 2000 by the Court of Additional District Fast Track Judge, Ramanathapuram. 2. On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the petitioner herein has filed the suit in O.S. No. 405 of 1993 before the Court of Principal District Munsif, Ramanathapuram against the respondents herein for declaration and injunction declaring that the first respondent is not his wife and respondents 2 to 5 are not his children and restraining the respondents from claiming any right in his property. The trial Court, after full trial, has partly allowed the suit declaring that the first respondent is not the wife of the petitioner and respondents 2 and 3 are not their children but has held that the respondents 4 and 5 are the children of the petitioner. 3. It further comes to be known that aggrieved against the said finding of the trial Court, the respondents herein have preferred an appeal in A.S. No. 99 of 2000 before the Court of Additional District Fast Track Judge, Ramanathapuram and when both sides arguments were completed and the matter was posted for judgment on 23-10-2002, the respondents herein have filed two petitions in I.A. Nos. 103 and 104 of 2002 respectively praying to reopen the appeal and examine the additional witnesses in the appeal and since both the said petitions were allowed by the lower appellate Court, the respondent therein has come forward to file both the above civil revision petitions on certain grounds as brought forth in the grounds of revisions. 4. During arguments, the learned counsel appearing on behalf of the petitioner, besides tracing the facts and circumstances embodied in the two Interlocutory Applications filed before the lower Court and the impact of the same, would also cite a judgment of the Honourable Apex Court delivered in Smt. V. Rajeshwari v. T.C. Sara-vanabava, reported in (2004) 2 Mad LW 373, wherein it has been held : "The rule of res judicata does not strike at the root of the jurisdiction of the Court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause." "The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal." Citing the above judgment, the learned counsel for the petitioner would pray to allow the above Civil Revision Petition. 5. On the contrary, on the part of the respondents, the learned counsel besides sailing along with the orders passed by the Court below, would also cite a judgment of the Honourable Apex Court delivered in A.P. State Wakf Board, Hyderabad v. All India Shia Conference (Branch), A.P., reported in (2000) 3 SCC 528 : ( AIR 2000 SC 1751 ) , wherein it has been held : "Inasmuch as such a declaration cannot be granted on the basis of the evidence led, the plaintiff has to adduce satisfactory evidence in relation to each of the institutions concerned." "As regards the procedure to be followed in such a situation, particularly in the light of the fact that the suit had been filed in the year 1963, it would be proper that instead of dismissing the suit, the parties should be given an opportunity to produce evidence so as to enable the Court to render a satisfactory judgment on the issue as to whether these institutions are Shia Wakfs or Sunni Wakfs." "It is settled law that under Order 41, Rule 27(1)(b), CPC, whenever the Court finds difficulty in deciding an issue, it can direct additional evidence to be adduced, treating the need for evidence as "a requirement of the Court" for pronouncing a satisfactory judgment. It would be "other substantial cause" under Order 41, Rule 27(1)(b)." Citing the above judgment, the learned counsel for the respondents would pray to dismiss the above civil revision petitions. 6. It would be "other substantial cause" under Order 41, Rule 27(1)(b)." Citing the above judgment, the learned counsel for the respondents would pray to dismiss the above civil revision petitions. 6. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, it comes to be seen that I.A. No. 103 of 2002 concerned with C.R.P. No. 225 of 2003 has been filed before the Court below under Section 151, C.P.C. praying to re-open the appeal in A.S. No. 99 of 2000 on the file of the Court of Additional District Fast Track Judge, Ramanathapuram and the other I.A. No. 104 of 2002 concerned with C.R.P. No. 226 of 2003 has been filed under the same provision of law i.e. Section 151, C.P.C. praying to permit the petitioners-appellants to examine additional witnesses since they are vital to prove the case of the petitioners on averments that the allegation of the respondent/plaintiff that the marriage in between the first appellant/first defendant was solemnized with one Sethupandi and the same was ended in divorce is false, but on the contrary, the first appellant was given in marriage to one Loganathan alias Arumugam and in order to prove these facts, at the time of trial before the trial Court, no independent witness was available but now since being available and to prove the vital factors relating to these two facts pleaded, the examination of the additional witnesses is quite necessary. 7. The lower appellate Court, in spite of the stiff opposition from the revision-petitioner herein, having felt the necessity to examine those witness for the purpose mentioned in the petitions since being vital for arriving at a valid conclusion and following the judgment of the Apex Court, reported in 2000 (2) Cur Civ C 41 : ( AIR 2000 SC 1751 ) would ultimately allow both the applications aggrieved against which the revision-petitioner/plaintiff has come forward to file both the above Civil Revision Petitions. 8. 8. Though both these Interlocutory Applications have been filed under Section 151, C.P.C. before the lower appellate Court, for re-opening the appeal and seeking permission of the Court to let in additional evidence seeking the Court to make use of its inherent powers, still, the subject covering both the above Interlocutory Applications are vital in the sense that it relates to the proof of the marriage of the first respondent herein and since according to the respondents herein, they were not in a position to elicit oral evidence of the witnesses concerned with the factum of marriage or divorce for non-availability of such witnesses at the time when the matter was under trial and since they are available now, they have filed these two Interlocutory Applications before the lower appellate Court. 9. The law is liberal regarding letting in such additional evidence and, therefore, the lower appellate Court has thought it fit to not only order re-opening of the appeal suit which was closed for judgment but also to permit the appellants therein to let in additional evidence thus allowing both the Interlocutory Applications and this Court is not able to find anything wrong in the fair and decretal orders passed by the lower appellate Court which have been passed in a well considered and merited manner assigning proper reasons for arriving at such conclusions and therefore the interference of this Court sought to be made into the said fair and decretal orders passed by the lower appellate Court is not only unnecessary but unwarranted as well and hence the following order : In result, (i) both the above Civil Revision Petitions do not merit acceptance and they are dismissed accordingly. (ii) The fair and decretal orders both dated 3-1-2003 made in I.A. Nos. 103 and 104 of 2002 in A.S. No. 99 of 2000 by the Court of Additional District Fast Track Judge, Ramanathapuram are hereby confirmed. However, in the circumstances of the cases, there shall be no order as to costs. Consequently, C.M.P. No. 2411 of 2003 is also dismissed.