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2009 DIGILAW 5870 (MAD)

B. Rajeswari & Another v. B. Vinayagam & Others

2009-12-23

P.P.S.JANARTHANA RAJA

body2009
Judgment This Civil Revision Petition has been filed against the order dated 012. 2008 in I.A.No.544 of 2008 in O.S.No.281 of 2006 on the file of the Principal Sub Judge, Chengalpattu. 2. The petitioners herein are defendants 1 and 2. The first respondent herein is the plaintiff and the respondents 2 and 3 are the defendants 3 and 4 in the suit. The first respondent/plaintiff filed a suit before the Principal Sub Judge, Chengalpattu in O.S.No.281 of 2006 seeking following prayers:- "a) To direct the defendants 1 and 2 to execute the sale deed and register the same in respect of the schedule mentioned properties in favour of the plaintiff on receipt of the balance of sale consideration of Rs.2,15,000/- and if the defendants 1 and 2 failed to do so the same, the Court may execute the sale deed and register the same on behalf of the defendants 1 and 2 in favour of plaintiff; b) To direct the defendants 1 and 2 to pay the cost of the suit. " The petitioners / defendants 1 and 2 filed the written statement denying all the averments made in the plaint and submitted that the suit is devoid of merits and the same has to be dismissed. The first respondent/plaintiff has filed I.A.No.544 of 2008 in O.S.No.281 of 2006 under Section 30(b) and Order 16 Rules 7 and 14 and Section 151 CPC seeking to issue witness summons to Balaraman, Son of Manickkam Pillai to tender evidence about the suit sale agreement dated 08.08.2006. The petitioners herein / defendants 1 and 2 filed counter opposing the application and stated that the 3rd defendant cannot be permitted to appear as plaintiff’s side witness, since defendants 3 and 4 were already set exparte and he cannot be permitted to tender evidence in the suit. After considering the submissions made by both the parties, the trial court allowed the said application granting the prayer sought for. Aggrieved against that order, the petitioners/defendants 1 and 2 have filed the present Civil Revision Petition. 3. The learned counsel appearing for the petitioners herein submitted that the trial court is not correct in allowing the said IA for summoning the second respondent/D3 to depose in favour of the plaintiff. Aggrieved against that order, the petitioners/defendants 1 and 2 have filed the present Civil Revision Petition. 3. The learned counsel appearing for the petitioners herein submitted that the trial court is not correct in allowing the said IA for summoning the second respondent/D3 to depose in favour of the plaintiff. He further submitted that the trial Court failed to note that the suit is for specific performance and the defendants, who are the contesting defendants, had specifically denied the execution of the agreement and signature as forged. Therefore, the burden is on the first respondent/plaintiff to prove the execution of the agreement. Therefore, the learned counsel for the petitioners herein submitted that the order passed by the trial Court is not in accordance with law and the same has to be set aside. 4. The learned counsel appearing for the first respondent/plaintiff submitted that the trial Court has considered all the facts and circumstances of the case and correctly allowed the application by relying on the judgments in the case of (i) N.PRABU ROY, S/o R.NITHIYANANTHAN AND OTHERS Vs. R.SUDHARSANAM, S/o.RAMANATHAN CHETTIAR, CHENNAI AND OTHERS reported in (2007) 2 MLJ 1130 and (ii) Minor Arumugam alias Logesh represented by next friend and natural guardian mother, Sampoornam Vs. State Bank of India represented by its Chief Manager and others reported in (2005) 4 MLJ 239 . It is further submitted that the order passed by the trial Court is in accordance with law and the same should be confirmed. 5. Heard the counsel on both sides. The suit is for specific performance. The 1st respondent/plaintiff filed the suit on the basis of the sale agreement dated 08.08.2006 executed by Defendants 1 to 4 in favour of the plaintiff / first respondent herein. In the sale agreement all the defendants are the signatories. The respondents 2 & 3 herein, who are the defendants 3 and 4 in the suit, did not contest the suit and hence they were set exparte. The petitioners herein, who are defendants 1 & 2 in the suit, filed the written statement denying the execution of sale agreement and further disputed that the first respondent/ plaintiff has already got examined himself as witness and another witness was also examined and for the purpose of proving the execution of sale agreement it is necessary to examine the third respondent. After taking into consideration of all facts and circumstances of the case, the Trial Court came to the conclusion that the third respondent is not a opposite party and therefore the first respondent/plaintiff is entitled to call the other party to give evidence and held as follows:- 4. The submission made on the respondent side are unsustainable, in the suit contesting defendants are one first and second defendants. Even according to respondents, the third and fourth defendants colluded with plaintiff and brought the suit. Admittedly there is no contra interest between the plaintiffs and third defendant in fact third defendant is not opposite party in the suit, he arrayed only as proper party for adjudication. Even according to the respondents the interest of the petitioner and defendants 3 and 4 are common. So if there are very good reasons the permission to be granted, enabling the parties to prove their case instead of shut the doors. In the petition is allowed the contesting defendants 1 and 2 have every right to cross examined the witness. No prejudice will be caused. 5. On the respondent side stated that examining opposite party on the petitioner side is not permissible in law. The said contention is not acceptable through Madras High Court held in N.Prabhu Roy Vs. R.Sudharsanam 2007 (2) MLJ 1130 . There is no total bar on the right of a party to call the other party to give evidence as a witness. If there would have been such a bar order-16 Rule 21 of C.P.C. Would not find plea. 6. Further it is held by Madras High Court in Minor Arumugham @ Logesh Vs. S.N.I. 2005 (4) MLJ 239 that a party to a suit can invoke order-16 Rule 21, if the party who is desirous of examining another party as witness has no conflicting interest, whereas the party to be summoned is suppressing the other party and not in the case where there is conflicting interest. The Madras High Court in V.K.Periasamy @ Perianna Gounder Vs. D.Ragan, 2001 (3) CTC 20 held the defendant who was set-exparte in suit, where interest is not adverse to plaintiff, he is not opposite party in strict sense could be summoned by the plaintiff to give evidence. 7. The Madras High Court in V.K.Periasamy @ Perianna Gounder Vs. D.Ragan, 2001 (3) CTC 20 held the defendant who was set-exparte in suit, where interest is not adverse to plaintiff, he is not opposite party in strict sense could be summoned by the plaintiff to give evidence. 7. In these circumstances, since the third defendant is not a opposite party in strict sense re request of petitioner/plaintiff is conceded in the result petition is allowed. No costs. 6. In the case of N.Prabu Roy, S/o. R.Nithiyananthan and Others Vs R.Sudharsanam, S/o. Ramanathan Chettiar, Chennai and Others reported in (2007) 2 MLJ 1130 , this Court has considered the scope of Order 16 Rule 21 and held as follows: “ As of right, a party cannot summon the opposite party as its witness and it is for the court to decide such necessity and whether such necessity exists to compel a party to give evidence in exercise of power under Order 16 Rule 1 CPC and the discretionary power to summon has to be exercised in a judicial manner ”. 7. In the case of Minor Arumugam alias Logesh represented by next friend and natural guardian mother, Sampoornam Vs. State Bank of India represented by its Chief Manager and others, reported in (2005) 4 MLJ 239 , also this Court considered the scope of Order 16 Rule 21 and has taken the similar view. After taking into consideration the principles enunciated above, this Court is of the view that the trial Court is correct in allowing the application made by the first respondent/plaintiff to summon the third defendant/M.Balaraman. 8.The Apex Court considered the scope of powers under Article 227 of the Constitution of India in the case of MS.CELINA COELHO PEREIRA AND OTHERS V. ULHAS MAHABALESHWAR KHOLKAR AND OTHERS reported in 2009(13) Scale 487 , wherein it has been held as follows: "32. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta and another, this Court held: "The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts." 33. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta and another, this Court held: "The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts." 33. In State through Special Cell, New Delhi V. Navjot Sandhu alias Afshan Guru and others this Court explained the power of the High Court under Article 227 thus: "Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”. 34. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, State of Maharashtra V. Milind & others, Rajneet Singh V. Ravi Prakash, came to be considered by this Court in the case of Shamshad Ahmad & Ors. v. Tilak Raj Bajaj, (deceased) through LRs. 34. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, State of Maharashtra V. Milind & others, Rajneet Singh V. Ravi Prakash, came to be considered by this Court in the case of Shamshad Ahmad & Ors. v. Tilak Raj Bajaj, (deceased) through LRs. And others and this Court held: "Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor re-appreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law." After taking into consideration the principle enunciated in the above cited judgments, I am of the view that the order passed by the trial court in I.A.No.544 of 2008 in O.S.No.281 of 2006 is in accordance with law. It is a question of fact. It is not a perverse order. Under these circumstance, I dont find any error or illegality in the order of the trial Court so as to warrant interference and the finding rendered by the trial Court is based on the valid material and evidence. Therefore, the order passed by the trial Court is hereby confirmed. 6. The Civil Revision Petition is dismissed. No Costs. Consequently, connected Miscellaneous Petition is also dismissed.