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2010 DIGILAW 2108 (MAD)

Carmel Shantha v. A. Pushparaj & Others

2010-05-01

M.CHOCKALINGAM, T.RAJA

body2010
Judgment :- M.CHOCKALILNGAM, J. These two intracourt appeals have arisen from the common order of the learned Single Judge of this Court made in Application Nos.722 and 723 of 2009 in TOS No.12 of 1999 whereby both the applications, the former for reopening the evidence and the latter for adducing additional evidence on the side of the plaintiff, were allowed. Aggrieved contesting defendant namely the appellant herein, has brought forth these appeals. 2. The gist of the case of the first respondent/ plaintiff as could be seen from the available materials, is that one A.Dharmaraj had executed a Will on 5.4.1994; that there were two attesting witnesses namely Rathnaswamy Xavier and Dr.M.K.Radhakrishnan; that as far as Rathnaswamy Xavier is concerned, an affidavit was filed on 30.9.1995; that he died on 11.2.2002; that as regards the other attesting witness Radhakrishnan, he could not be examined since he was in foreign parts; that though steps were taken, he could not be examined; that under the circumstances, the evidence was also closed on both sides; that in order to prove the execution and validity of the Will, there arose a necessity for the plaintiff to reopen the case and adduce additional evidence, and under the circumstances, both the applications were filed. 3. The contesting defendant namely the appellant herein contested the applications putting forth the reasons that the evidence on both sides was closed; that under the circumstances, it should not be allowed; that apart from that, as far as the affidavit filed by one of the attesting witnesses, is concerned, a specific question has been put to the witness; that he has not answered in favour of the plaintiff; that it is simply an attempt to fill up the lacuna, and under the circumstances, the applications were to be dismissed. 4. Both the applications were taken up for enquiry by the learned Single Judge, who took the view that it is a fit case where it has got to be reopened and additional evidence has to be adduced, and accordingly allowed the applications. But, at the same time, the learned Single Judge took the view that it is a case where the inconvenience caused to the appellant has got to be compensated properly, and hence ordered a cost of Rs.5000/- payable on or before 5.11.2009. Hence these appeals have arisen. 5. But, at the same time, the learned Single Judge took the view that it is a case where the inconvenience caused to the appellant has got to be compensated properly, and hence ordered a cost of Rs.5000/- payable on or before 5.11.2009. Hence these appeals have arisen. 5. The learned Counsel addressing the Court on behalf of the appellant would submit that as far as two attesting witnesses are concerned, one Rathnaswamy Xavier has filed an affidavit; that the other witness Radhakrishnan was not examined in time; that the entire evidence was also over; that at this juncture, if it is allowed, it is nothing but allowing the plaintiff to fill up the lacuna and hence it should not be ordered. The very same contentions which were raised by the appellant before the learned Single Judge were reiterated before this Court also. 6. The Court heard the learned Counsel for the caveator first respondent/plaintiff. 7. After hearing both sides, this Court is of the considered opinion that it is a fit case where it should be allowed. As far as the plaintiffs case was concerned, a Will was to be proved, and two witnesses who attested the Will, were actually available for the plaintiff, and out of them, one died, and the other could not be examined. It is not a case where steps were not taken. But, steps were taken, but he could not be examined in time. The law would require that if a Will has got to be proved by the plaintiff, at least one of the attesting witnesses should be examined. In a given situation, the learned Single Judge was perfectly correct in allowing the applications, but has also ordered cost. After considering the contentions put forth on either side, this Court is of the considered opinion that once an opportunity is given to the plaintiff to reopen the case and examine the other attesting witness, an opportunity should be given to the contesting defendant, who is the appellant herein, not only to cross-examine that witness, but also to put forth her additional evidence. In that regard, permission has got to be granted to the appellant. 8. Accordingly, both the appeals are disposed of affirming the order of the learned Single Judge and giving opportunity to the appellant to adduce additional evidence on her side. The parties shall bear their own costs. In that regard, permission has got to be granted to the appellant. 8. Accordingly, both the appeals are disposed of affirming the order of the learned Single Judge and giving opportunity to the appellant to adduce additional evidence on her side. The parties shall bear their own costs. Consequently, connected MPs are closed.