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2008 DIGILAW 4342 (MAD)

J. Jayalakshmi & Another v. Kathija Beevi & Others

2008-11-24

M.VENUGOPAL

body2008
Judgment :- The revision petitioners/petitioners/plaintiffs have filed the present revision petitions as against the order dated 19. 2008 passed in I.A.Nos.15136 and 15137 of 2008 in O.S.No.4097 of 2002 by 4th Assistant Judge, City Civil Court, Chennai in dismissing the applications praying to reopen the case and to recall P.W.1 witness. 2. The trial Court, while passing orders in the said Interlocutory applications, has inter alia opined that the said applications have not been filed with bonafide intention and that the reasons assigned for reopening the case and for recalling P.W.1 for the purpose of examination in paragraph 3 of the affidavit cannot be accepted and resultantly has dismissed the applications. 3. The learned counsel appearing for the revision petitioners submits that the trial Court should have given an opportunity to the revision petitioners/petitioners/plaintiffs to reopen and recall the evidence of P.W1 and even on the basis of the principle of equity both the applications should have been ordered by the trial Court and that the trial Court has failed to appreciate the fact that there is no metro water connection in front of the revision petitioners property connecting to Devaraja Mudali Street but it existed in the B schedule property Muniappa Chetty Lane and the same is admitted by the respondents 1 and 2 in their written statement and further the trial Court has not taken into account of the fact that the drainage connection in Devaraja Mudali Street, takes a sharp "L turn at the western junction connecting Chinnappa Street and passes through Chinnappa Street, whereas the plaintiffs property is at the eastern end of Devaraja Mudali Street, connecting Triplicane High Road and by allowing both the applications, no prejudice will be caused to the respondents and therefore prays for allowing these civil revision petitions to prevent aberration of justice. 4. Contending contra, the learned counsel appearing for respondents 1 and 2 submits that the evidence of the plaintiffs side in the suit was over and that P.W.1 has already been examined and now what has been tendered by P.W.1 in his evidence cannot be permitted to be changed by means of examination of P.W.1 and that the trial Court has assigned convincing reasons for dismissal of both the applications and therefore, the same need not be interfered with by this Court sitting in revision. 5. 5. Admittedly, the power to recall any witness can be exercised by a Court of law either suo motu or at the instance of either party. It is true that the Court of law cannot compel the litigant to examine the particular person as his witness. However, the power of the Court to recall an evidence is purely a discretionary one. In fact, the power to recall a witness already examined before the Court is given to the concerned Court and not to a party. Therefore, Order 18 Rule 17 CPC cannot be said to have granted an opportunity to the litigant to have a witness to recall. 6. As far as the present case is concerned, the case of the revision petitioners is that in the written statement filed by the defendants 1 and 2 at paragraph 7, they have clearly stated that after purchase of the said B schedule property by the second defendant and his family members, the second defendant requested the second plaintiff to shift his pipe line running through their property to Devaraj Mudali Street, wherein he has his entrance to his house, for which the second plaintiff demanded a huge amount for shifting the same. . . . . However, the learned counsel appearing for respondents 1 and 2 informs this Court that the written statement has been filed in the year 2002. 7. In the common affidavit in I.A.No.15136 and 15137 of 2008, it is averred that the second revision petitioner has been examined as P.W.1 and during his cross examination, he deposed that there are drainage connection in the Devaraj Mudali Street and therefore, the taxes were paid. According to the revision petitioners, the drainage is not running through Devaraj Mudali Street in front of their property and actually Devaraj Mudali Street, the drainage starts from western end and takes the short turn to the northern end at the junction leading to the Chinnappa Street and therefore his answer on earlier occasion that there is drainage connection in front of their property is incorrect and actually there is no drainage connection in Devaraj Mudali Street leading to Triplicane High Road. 8. The main contention of the revision petitioners is that a misleading question has been put to P.W.1 and that answer uttered by P.W.1 in the cross cannot be utilised against the merits of the case. 9. 8. The main contention of the revision petitioners is that a misleading question has been put to P.W.1 and that answer uttered by P.W.1 in the cross cannot be utilised against the merits of the case. 9. It is an axiomatic fact that an evidence tendered by a party in a Court of law is a valuable one and that no attempt should be made to displace the evidence already tendered by him in any manner. In the opinion of this Court, recalling of evidence under Order 18 Rule 17 of CPC is only an existing provision for the convenience of the Court and the ingredients of the said Order 18 Rule 17 of CPC do not permit the litigant to reexamine any witness either to fill up a lacuna in the case or to displace the evidence already tendered by him and in that view of the matter, without going into the merits of the case, this Court is not inclined to allow the revision petitions and resultantly the revision petitions are dismissed in the interest of justice. 10. In the result, these civil revision petitions are dismissed. The order passed by the trial Court in I.A.Nos.15136 and 15137 of 2008 are affirmed by this Court for the reasons assigned in these civil revisions by this Court. Liberty is given to the revision petitioners/plaintiffs to establish their case in regard to the drainage connection by examining the proper authorities from the sewerage Board in the manner known to law and the trial Court is directed to provide necessary opportunities to the revision petitioners in this regard. It is made clear that the trial Judge is directed to dispose of the said O.S.No.4097 of 2008, pending on his file independently uninfluenced with any one of the observations made by this Court in these revision petitions. No costs. Consequently, connected M.P.No.1 of 2008 is also dismissed.