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Madras High Court · body

2009 DIGILAW 806 (MAD)

R. Kalaiarasan v. M. Lingam & Others

2009-03-25

S.RAJESWARAN

body2009
Judgment The above Civil Revision Petitions are filed against the Orders dated 110. 2007 passed in I.A.Nos.13591 and 13592 of 2007 in O.S.No.7074 of 2000 on the file of the XI Assistant Judge, City Civil Court, Chennai. 2. The plaintiff filed O.S.No.7074 of 2000 for the following reliefs. (a) For a permanent injunction restraining the defendants, their men, agent, servants, or anybody claiming under them from in any manner interfering with the peaceful possession and enjoyment of the suit schedule mentioned property including the vacant portion situate on the North of the building. (b) To declare that an extent of 12 feet wide from north to south and an extent of 22.9 feet length from south to east having an extent of 274.8 sq.ft., forming part of the suit property belongs to the plaintiff and that the defendants were only permissive occupants free of rent; and (c) to declare that the defendants are liable to be evicted out of the suit property for having put the suit property to waste and for having breached their promise in not running night school and letting the same to third party for rent. 3. Written statement and additional written statement have been filed by the defendants and the suit is being contested. The trial has already commenced and the suit was posted for passing judgment. At that time, the defendants in the suit, filed I.A.Nos.13591 of 2007 and I.A.No.13592 of 2007 to re-open the plaintiffs evidence and to recall the P.W.1 for further cross examination respectively. A common counter affidavit has been filed in both the applications by the plaintiff/revision petitioner and the trial court by separate orders dated 110. 2007, allowed both the applications on payment of Rs.500/- as cost for each application. 4. Aggrieved by both the orders of the trial court dated 110. 2007, the plaintiff filed the above Revision petitions under Article 227 of the Constitution of India. 5. Heard the learned counsel for the revision petitioner. On the direction of this Court, private notice was taken and the same was served on the first respondent on 01.02.2008. Though his name appeared in the list, there is no representation on his behalf. Regarding R2, the cover has been returned with an endorsement "left". With regard to the respondents 3 to 6 covers have been returned as "unclaimed". I have also gone through the entire documents available on record. 6. Though his name appeared in the list, there is no representation on his behalf. Regarding R2, the cover has been returned with an endorsement "left". With regard to the respondents 3 to 6 covers have been returned as "unclaimed". I have also gone through the entire documents available on record. 6. The learned counsel for the revision petitioner submits that when the suit was posted for passing judgment, the applications filed by the respondents/defendants to re-open the plaintiffs evidence and to re-call P.W.1 for further cross examination are not at all maintainable. He further pointed out that the trial court having held that the applications were filed only for the purpose of protracting the proceedings, ought not to have allowed the applications. He relied on the following decisions namely: 1. A.I.R. 1978 ALL 515 (Altaf Hussain Vs. Nasreen Zahra) 2. A.I.R. 1980 A.P. 265 (T.Ramachandra Vs. K.Ramamurthy) 7. In the affidavit filed in support of I.A.No.13591 0f 2007, the respondents/defendants stated that they engaged the present counsel to conduct the suit proceedings and to claim suitable relief. During the plaintiffs evidence, the present counsel conducted the cross examination to some extent and sought time for further examination. As there are numerous interim applications moved by the plaintiff for various reliefs and Advocate Commissioners report and other records, their counsel instructed them to place the entire papers to go through and to conduct further cross examination. But, during the eviction process, the entire records kept in the suit premises were thrown out by the persons involved in eviction and several important papers were destroyed and misplaced. Due to non availability of important papers, they could not conduct the cross examination in an effective manner. There are several aspects which have to be questioned to bring out the several facts and to prove that the plaintiff has no right or title whatsoever over the suit premises. 8. The respondents/defendants also admitted that the suit was posted for the submission of the defendants arguments. At that time, on perusing the records and looking at the entire evidence, they felt it necessary to conduct further cross examination of P.W.1. In these circumstances, their further cross examination of P.W.1 would help the court for better appreciation of the facts. Hence, they filed the above applications for the aforesaid reliefs. 9. At that time, on perusing the records and looking at the entire evidence, they felt it necessary to conduct further cross examination of P.W.1. In these circumstances, their further cross examination of P.W.1 would help the court for better appreciation of the facts. Hence, they filed the above applications for the aforesaid reliefs. 9. The revision petitioner/plaintiff filed a common counter affidavit in both the applications wherein it was stated that the trial was commenced and after completion of the plaintiffs side witness/evidence and the defendants side evidence, the suit was posted for arguments. The revision petitioner/plaintiff filed his written arguments as early as on 23.07.2007 itself. Thereafter, the suit was adjourned for the arguments of the defendants on 24.07.2007. On 24.07.2007, at the request of the respondents/defendants, the suit was adjourned to 27. 2007 as a last chance. However, on 27. 2007, again at the request of the respondents/defendants, the suit was adjourned to 37. 2007. On 31.07.2007, again an adjournment was sought for by the respondents/defendants and as per their request, the suit was again adjourned to 8. 2007. On 8. 2007, instead of arguing the matter, the respondents/defendants filed a petition for adjournment and accordingly the suit was adjourned to 8. 2007. On 8. 2007, again a petition was filed by the respondents/defendants for adjournment and accordingly, the suit was adjourned to 8. 2007. On 8. 2007, another petition was filed by them for adjournment and again the suit was adjourned to 18. 2007. On 18. 2007, as there was no representation on behalf of the respondents/defendants, the suit was posted for judgment on 28.08.2007. Thereafter, the respondents/defendants filed I.A.No.13591 and 13592 of 2007 for re-opening of the plaintiffs side evidence and for recalling the P.W.1 for further cross examination. 10. It was further pointed out by the revision petitioner/plaintiff in his counter affidavit that the cross examination of P.W.1 was done in part on 21.03.2006 and thereafter, P.W.1 was not at all cross examined inspite of more than twenty six adjournments. The present applications have been filed after nearly one and half years and therefore these applications are to be dismissed on the ground of latches. 11. It was further stated by the revision petitioner/plaintiff that after cross examining P.W.1 in part on 21.03.2006, he was not cross examined further. Thereafter, the suit was decreed as prayed for. The present applications have been filed after nearly one and half years and therefore these applications are to be dismissed on the ground of latches. 11. It was further stated by the revision petitioner/plaintiff that after cross examining P.W.1 in part on 21.03.2006, he was not cross examined further. Thereafter, the suit was decreed as prayed for. The respondents/defendants filed a petition to set aside the ex-parte decree and that petition was allowed and the suit was restored. 12. On restoration, instead of continuing the cross examination of P.W.1, the respondents/defendants examined D.W.1 in chief and he was also cross examined. Subsequently, D.W.1 was examined and D.W.2 was also cross examined on 25.04.2007 and 28.06.2007. Then D.W.3 was examined in chief and D.W.3 was also cross examined on the same day i.e. 17. 2007. Subsequently, the respondents/ defendants made an endorsement on 17. 2007 that they have no further evidence. Then the suit was posted for arguments. The revision petitioner/plaintiff submitted their written arguments on 27. 2007 and after getting more than eight adjournments, the defendants have come out with these applications i.e. I.A.Nos.13591 and 13592 of 2007. Therefore, the revision petitioner/plaintiff contended that these applications are not maintainable and there is no bonafide on the part of the respondents/defendants in filing these applications. 13. The trial court in both the orders dated 110. 2007, observed that on perusal of the affidavit and the counter and also the suit records, the contention of the respondents/defendants could not be accepted as reasonable. The trial court further observed that the contention of the revision petitioner/plaintiff is acceptable and reasonable as is evident from the court records. The trial court was also of the opinion that both the petitions were filed at the fag end of the trial and that too at the stage of arguments and therefore, there is force on the contention of the revision petitioner/plaintiff that both the petitions were filed to protract the proceedings. Having observed as above, the trial court further decided to allow both the petitions in the interest of justice and for complete adjudication of the dispute. Accordingly, both the petitions were allowed on a payment of cost of Rs.500/- on each application. 14. Having observed as above, the trial court further decided to allow both the petitions in the interest of justice and for complete adjudication of the dispute. Accordingly, both the petitions were allowed on a payment of cost of Rs.500/- on each application. 14. After going through the entire records and after hearing the arguments of the learned counsel for the petitioner, I am of the considered view that the trial court has committed an illegality in allowing both the applications filed by the respondents/defendants to re-open the plaintiffs side evidence and also to recall P.W.1 for further cross examination. 15. It is not in dispute that the averments made by the revision petitioner/plaintiff in the common counter affidavit filed in I.A.No.13591 of 2007 and I.A.No.13592 of 2007 were not at all denied by the respondents/defendants. On the other hand, the trial court itself after going through the records, found that the averments made in the counter affidavit are correct and these petitions have been filed only to protract the proceedings. Having found that there is no bonafide on the part of the respondents/ defendants and having held that both the petitions were filed only for the purpose of protracting the proceedings, the trial court ought to have dismissed both the applications instead of allowing the applications by imposing a cost of Rs.500/- on each application. 16. That apart, the plaintiffs evidence was closed in March 2006 and I.A.Nos.13591 and 13592 of 2007 were filed in August 2007 and no reasons, much less, acceptable reasons were given by the respondents/defendants for filing the applications except saying that these applications are to be allowed in the interest of justice as they misplaced some records and some of the papers were destroyed. No reason whatsoever was given by the respondents/defendants for examining D.W.1, D.W.2 and D.W.3 before completing the cross examination of P.W.1. Further, when the suit was posted on 27. 2007 for the arguments of the respondents/defendants, instead of arguing the matters, they successfully adjourned the matter on several occasions from 27. 2007 to 18. 2007 by filing a number of adjournment petitions. On 18. 2007, there was no representation on behalf of the respondents/ defendants and therefore, the suit was posted for judgment on 28. 2007. 2007 for the arguments of the respondents/defendants, instead of arguing the matters, they successfully adjourned the matter on several occasions from 27. 2007 to 18. 2007 by filing a number of adjournment petitions. On 18. 2007, there was no representation on behalf of the respondents/ defendants and therefore, the suit was posted for judgment on 28. 2007. It was only at that time the respondents/ defendants suddenly realised that P.W.1 has not been effectively cross examined and this, in my opinion, is definitely for the purpose of further postponing the suit proceedings and I do not find any bonafide in those applications. 17. In A.I.R. ALL 515 (cited supra), the Allahabad High Court held as under: "11. It was then contended by the learned counsel that the suit was originally being tried in the court of the Civil Judge, Aligarh and was later transferred to the Court of the Additional Civil Judge, Aligar. After the evidence of the witnesses for the parties had been recorded and the case was fixed for arguments on 20th Sept. 1976 the Additional Civil Judge directed the recalling and re-examination of the Government Handwriting Expert, P.W.1 under O. XVIII R.17 C.P.C. It will be relevant to quote that order: "The decision of the present case depends upon the finding about the signature which appears on the register and notification of Special Marriage. According to the Government Expert, Sri Aurad Hussain Rizvi (P.W.1) disputed signatures marked Q195 to Q-196 have been superimposed by one common model. The witness was cross examined about this fact and he stated there that he has not brought the graphical test. I have gone through these two signatures marked Q-195 and Q-199. The formation of letters "a, s and Z" in these two signatures is so different, that thesecannot be held to be a super-imposition or traced forgery from a common object. I think that the graphical test should also be seen before giving a finding on this point. Under these circumstances, the recalling and re-examination of the Government expert (P.W.1) has become necessary, O.XVIII, R.17 C.P.C. empowers courts to recall and examine a witness at any stage of the suit. There are authorities to show that a witness even can be recalled when any ambiguity or omission is noticed while writing a judgment. Under these circumstances, the recalling and re-examination of the Government expert (P.W.1) has become necessary, O.XVIII, R.17 C.P.C. empowers courts to recall and examine a witness at any stage of the suit. There are authorities to show that a witness even can be recalled when any ambiguity or omission is noticed while writing a judgment. I, therefore, order the recall of Sri Aurad Hussain Rizvi (P.W.1) who would be examined with graphical test, if any, and remove ambiguities in this case on 26th October 1976. Let the summon be issued to the witness for 210. 76." It appears that the case was thereafter transferred to the Third Additional District Judge, Aligar, vide the order of the District Judge dated 4th October 1976. The case was then listed for hearing on 26th October 1976 before the Third Additional District Judge. He was examined by the Court. Thereafter, an application 142/C-2 was moved on behalf of the defendant for being permitted to cross examine the witness in respect of his statement recorded in court on that day. The Court rejected the application. Learned counsel has contended that the order rejecting the application and refusing permission to the defendant to cross examine the witness, recalled by the Court, was an illegality. It was necessary to cross examine the witness for he had introduced some fresh material. It was urged that the failure of the Court to afford an opportunity to the defendant to cross examine a witness in regard to a material part of his statement was an illegality in the procedure and vitiated the proceedings. I am unable to accept this contention for the provisions of O. XVIII R.17 are quite clear. O.XVIII R.17 reads as follows:- "17. Court may recall and examine witness:-The Court may at any stage of a suit recall any witness who has been examined and may (subject to eh law of evidence for the time being in force) put such questions to him as the Court thinks fit." This Rule provides the Court with a power which is necessary for the proper conduct of a case. If it appears to a court trying the suit at any stage of the proceedings that it is necessary to recall and further examine a witness it can always do so. This power can be exercised even at the stage of writing a judgment by the court. If it appears to a court trying the suit at any stage of the proceedings that it is necessary to recall and further examine a witness it can always do so. This power can be exercised even at the stage of writing a judgment by the court. It is , however, proper that this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only. The power is to be used for removing ambiguities, for clarifying the statement and not for the purpose of filling up the lacuna in a partys case. It is true that the power can be exercised by the Court at its own initiative and may even be so done at the instance of a party. Sec.165 of the Evidence Act provides that a Judge may in order to discover or obtain proper proof of relevant facts, ask any question he pleases in any form at any time of any witness about any fact relevant. The section further provides that the partiesa shall not be entitled to make any objection to any such question, nor cross-examine any witness upon any answer given in reply to any such question without the leave of the Court. If the provisions of Order XVIII R.17 are read along with the provisions of S.165 of the Evidence Act, it is clear that the power to recall and re-examine a witness is exclusively that of the court trying the suit. The parties to the suit cannot take any objection to the question asked nor can they be permitted to cross examine any witness without the leave of the court. 12. In the present case, the application 142/C-2 could at best be an application as contemplated under S.165 of the Evidence Act for leave to cross examine the witness. It is a matter of discretion of the Court. In the present case, the Court has refused that leave. I do not see any illegality, I have perused the subsequent statement made by P.W.1 upon being recalled and I do not see any particular reason for permitting the defendant to cross examine the witness. It was of course open to a party to suggest some questions to the Court to be asked of the witness. It does not appear that any such prayer was made. It was of course open to a party to suggest some questions to the Court to be asked of the witness. It does not appear that any such prayer was made. Of course, when a witness appears on being recalled neither party has a right of cross examination. Consequently, the rejection of the application cannot be said to be contrary to any provision of law." 18. In A.I.R. 1980 A.P. 265 (cited supra), the Andhra Pradesh High Court held as under: "5. The undisputed fact is that it was only after the judgment was reserved and at a time when there was no more hearing of the case, the interlocutory application was made. So, the jurisdiction of the Court was sought to be invoked for recalling the witness at the time when the hearing of the case was over within the meaning of Sultan Saleh Bin Omer V. Vijayachand Sirimal (AIR 1966 Andh Pra 295) (supra), No authoritative pronouncement has been brought to my notice wherein it is held that under Section 151 a witness can be recalled by reopening the suit under the circumstances of the present case. The Patna case referred to above deals with a situation which is wholly different from the case on hand and, therefore, it is of no or little assistance to the petitioner. In this case, the issues were recast in June 1979 and after hearing the arguments, the judgment was reserved in December, 1979. No reason whatsoever has been assigned for not making an attempt for a period of six months at recalling P.W.1 as was sought to be made at the time the judgment was reserved. I, therefore, find no error in the order under revision when the lower court observes that the application is nothing but an act to fill up the lacuna. It is now agreed by both the counsel, and it is also well settled, that is is purely a discretionary remedy, and I do not find any indiscretion or lack of judicial discretion exercised by the lower Court warranting interference." 19. It is now agreed by both the counsel, and it is also well settled, that is is purely a discretionary remedy, and I do not find any indiscretion or lack of judicial discretion exercised by the lower Court warranting interference." 19. The Allahabad High Court, in the above judgment, observed that "the power under Order XVIII Rule 17 of C.P.C. can be exercised even at the stage of writing a judgment by the court, but, this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only." 20. The Andhra Pradesh High Court went to the extent of observing that "no authoritative pronouncement has been brought to the notice of the court, wherein it is held that a witness could be re-called by re-opening the suit after it was adjourned for passing judgment". 21. I am concurring with the judgment of the Allahabad High Court that under Order XVIII Rule 17 C.P.C., re-examination of witness is possible even at the stage of writing a judgment, but, the power should not be exercised lightly and it should be used in exceptional cases only. 22. In the present case, I do not find any exceptional circumstances warranting reopening of the plaintiffs evidence and recalling P.W.1 for further cross examination. In fact, these applications have been filed only for the purpose of protracting the suit proceedings. Normally, this court will permit such petitions, if the court finds no malafide on the part of the petitioner. But, in this case, the malafide and the obligue motive of procrastination is obvious and the court should not extend its helping hand to persons who are contesting a matter with a malafide intention of delaying and frustrating the suit proceedings. 23. Therefore, I have no hesitation in setting aside the orders of the trial court, dated 110. 2007 allowing I.A.Nos.13591 and 13592 of 2007. Consequently, both the revision petitions are allowed and both the I.A.Nos.13591 and 13592 of 2007 are dismissed No costs. Connected Miscellaneous petitions are also closed. 24. Considering the fact that the suit is of the year 2000 and the suit was posted for passing judgment on 28. 2007, I direct the respondents/defendants to file their written arguments within a week from the date of receipt of a copy of this order. Connected Miscellaneous petitions are also closed. 24. Considering the fact that the suit is of the year 2000 and the suit was posted for passing judgment on 28. 2007, I direct the respondents/defendants to file their written arguments within a week from the date of receipt of a copy of this order. If such written arguments by the respondents/defendants are filed within the time stipulated, the trial court is directed to dispose of the suit on merits and in accordance with law within a week thereafter. It is also made clear that if no written arguments are filed within the time stipulated, then the trial court shall dispose of the suit on merits within a week thereafter. 25. In the result, these Civil Revision petitions are allowed. No cost.