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2009 DIGILAW 522 (MAD)

Ramalingam & Others v. Chandra Ammal & Another

2009-02-11

G.RAJASURIA

body2009
Judgment : These civil revision petitions are filed against the order dated 20.12.2000 passed in I.A.Nos.1135, 1136 and 1238 of 2000 in O.S.No.174 of 1991 by the District Munsif, Panruti. Inveighing the order dated 20.12.2000 passed in I.A.Nos.1135, 1136 and 1238 of 2000 in O.S.No.174 of 1991 by the District Munsif, Panruti, these civil revision petitions are focussed. 2. A resume of facts absolutely necessary and germane for the disposal of this civil revision petition would run thus: The first respondent/plaintiff filed the suit O.S.No.174 of 1991 seeking the following reliefs:- "i. to declare that the plaintiff is entitled to possession of the suit property. ii. to direct the defendants to deliver possession of the suit property to the plaintiff peacefully, failing which to order for delivery of the suit property through process of court. iii. to order for a sum of Rs.4500/- with interest for Rs.4,500/- at 12% rate from the date of the suit up to the date of decree and thereafter at 6% against the defendants and their property. iv. to declare that the plaintiff is entitled for mesne profit for the suit property from the date of suit up to the date of delivery and it is to be determined as per provisions of Order 20 rule 20 of CPC." It so happened that D1 to D3 jointly filed one written statement and D4 filed another written statement. D4 is none but the vendee of D1 to D3 relating to the suit property. The suit itself is one for recovery of possession of the suit property on the ground that the plaintiff is the life estate holder in respect of the suit property. During trial, the plaintiff examined herself as P.W.1 and when the matter was posted for cross, the defendants did not cross-examine her. Whereupon they were set ex-parte and subsequently, ex-parte decree also was passed. Whereupon D1 to D3 filed application for getting the ex-parte decree set aside and it was allowed. But they did not make use of that opportunity. On two more occasions also similar ex-parte decrees were passed and they were set aside at the instance of D1 to D3. However, when D1 to D3 filed application lastly for getting the ex-parte decree set aside, it was dismissed. As against which, they filed C.M.A., and the same was also dismissed. It appears as against D1 to D4 ex-parte decree was passed. However, when D1 to D3 filed application lastly for getting the ex-parte decree set aside, it was dismissed. As against which, they filed C.M.A., and the same was also dismissed. It appears as against D1 to D4 ex-parte decree was passed. But subsequently, at the instance of D4, the ex-parte decree was set aside and D4 was permitted to participate in the proceedings. At that juncture, D1 to D3 filed IA.Nos.1135, 1136 and 1238 of 2000 for reopening the side concerned, for recalling P.W.1 and for setting aside the ex-parte decree, respectively. But those applications were dismissed. Being aggrieved by and dissatisfied with the said order, these civil revision petitions are focussed by the defendants on various grounds. 3. The learned counsel for the revision petitioners, placing reliance on the grounds of revisions, would develop his argument to the effect that by virtue of the ex-parte decree passed as against D1 to D4 having been set aside at the instance of D4, the benefit would enure to D1 to D3 also to participate in the proceedings and to get even P.W.1 recalled for being cross-examined by D1 to D3 and as such, the lower Court was not justified in dismissing the I.As. 4. 4. The learned counsel for the first respondent/plaintiff would detail and delineate, explain and expound the relevant facts to the effect that the plaintiff has filed the suit purely for the purpose of obtaining possession of the suit property by way of exercising her life estate over the suit property; but the defendants 1 to 3 arbitrarily and illegally sold the suit property in favour of D4, who took possession of the suit property and enjoying it; even though the setting aside of the ex-parte decree, at the instance of D4, might enure to the benefit of D1 to D3, nonetheless D1 to D3 cannot recall P.W.1 and cross-examine her because earlier thrice opportunities were given, but D1 to D3 failed to make use of it and in fact, the ratiocination adhered to by the higher forum in rejecting their prayer also would operate as against defendants 1 to 3; when D4-the purchaser of the property from D1 to D3, is very much contesting the matter and cross-examining P.W.1, in no way D1 to D3 would be justified in praying for one more opportunity of cross-examining P.W.1 and that too, in the peculiar facts and circumstances of the case detailed supra. 5. I could see considerable force in the submission made by the first respondent/plaintiff because D4, who is now fully participating in the proceedings, is having the right to cross-examine P.W.1 and in such a case, simply because D1 to D3 were not given opportunity to cross-examine P.W.1, in view of their laches, no prejudice would be caused to them legally. In this factual matrix, in view of the ex-parte decree having been set aside, at the instance of D4, virtually there is no ex-parte decree as against any one of the defendants. The crucial question arises as to whether D1 to D3 are justified in praying for recalling P.W.1 for cross-examination. Even though ex-parte decree was set aside, the ex-parte order still stands and thrice opportunities were given earlier, but owing to laches on the part of D1 to D3, P.W.1 was not cross-examined. Hence, in such a case, I could see no rhyme or reason on the part of D1 to D3 in praying for one more opportunity to cross-examine P.W.1, and that too, when D4, their vendee, has right to cross-examine P.W.1. Hence, in such a case, I could see no rhyme or reason on the part of D1 to D3 in praying for one more opportunity to cross-examine P.W.1, and that too, when D4, their vendee, has right to cross-examine P.W.1. I make it clear that cross-examination whether already effected by D4 or yet to be effected by D4 relating to P.W.1, would certainly enure to the benefit of D1 to D3 also. The law is also clear that even though at one stage D1 to D3 have been set ex-parte, they are having the right to participate in the rest of the proceedings, as per law. Accordingly, these revisions are ordered as above and disposed of. No costs.