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2010 DIGILAW 2247 (MAD)

S. Gause Mohideen v. M. Sivalingam & Another

2010-06-08

G.RAJASURIA

body2010
Judgment 1. Inveighing the order dated 18. 2009 passed in O.S.Nos.257 of 1998 and 13 of 2006 by the Wakf Tribunal (Subordinate Judge, Vellore), these civil revision petitions are focussed. 2. Broadly but briefly, narratively but precisely the relevant facts absolutely necessary and germane for the disposal of these civil revision petitions, would run thus:- .(a) The revision petitioner herein filed the suits O.S.Nos.257 of 1998 and 13 of 2006 seeking the following reliefs: .b. to direct the first defendant to pay the cost of the suit to the plaintiff." O.S.No.13 of 2006: "a. To grant a permanent injunction restraining the defendant his men, agents and servants from in O.S.No.257 of 1998: "a. to direct the first defendant to deliver vacant possession of the suit property to the plaintiff. any manner proceeding with any sort of construction work in the suit property. b. to direct the defendant to pay the cost of this suit." (b) Written statements were filed, refuting and denying the averments/allegations in the plaints. Whereupon the trial Court initially framed the following issues: O.S.No.257 of 1998: TAMIL O.S.No.13 of 2006 TAMIL .(c) During trial, on the plaintiffs side, the plaintiff examined himself as P.W.1 and one R.Shabudeen as P.W.2 and documents Ex.P1 to P.21 were marked. On the defendants side the first defendant examined himself as D.W.1. And documents Ex.D1 to D29 were marked. 3. At this juncture, it is just and necessary to refer to the main submissions made by the learned counsel for the revision petitioner, which are as follows: (i) The learned trial Judge, after posting the matter for judgment, suo motu recast the issues as under: O.S.No.257 of 1998: TAMIL O.S.No.13 of 2006: TAMIL .(ii) The said recast issues were not disclosed or informed to the advocates on record and no opportunity was given to adduce evidence on either side. However, the learned trial Judge pronounced the judgement based on the evidence already available on record. 4. Being aggrieved by and dis-satisfied with the judgment and decree passed as against the plaintiff, these revision petitions have been focussed mainly on the ground that no opportunity was given to adduce evidence relating to the title concerning the recast issues. 5. Heard both sides. 6. 4. Being aggrieved by and dis-satisfied with the judgment and decree passed as against the plaintiff, these revision petitions have been focussed mainly on the ground that no opportunity was given to adduce evidence relating to the title concerning the recast issues. 5. Heard both sides. 6. The point for consideration is as to whether the trial Court was justified in recasting the issues and simply pronouncing the judgement without giving opportunity to the parties to adduce evidence and make their submissions concerning those issues? 7. The learned counsel for the revision petitioner/plaintiff would reiterate the aforesaid revisional grounds and pray for remanding the matter to the lower Court so as to enable the plaintiff to adduce further evidence in this regard and make further submissions also. 8. However, the quintessence of the argument of the learned counsel for the first respondent/first defendant would run thus: .(i) The additional written statement was filed long ago disputing the title of the plaintiff over the suit property. .(ii) Eventhough no issues or additional issues were framed, immediately after filing of the additional written statement, yet the court in view of the patchy and scanty evidence already adduced on the side of the plaintiff, which did not found favour of the Court held that the suit property did not belong to the plaintiff and in such a case, the plaintiff cannot raise his accusative finger as against the defendant as though opportunity was not given. (iii) It is an after thought on the part of the plaintiff to come forward with some grounds in the form of revision before this Court, so as to protract the proceedings. .(iv) The evidence already available on record is much more sufficient to demonstrate and display that the plaintiff is not the owner of the suit property at all. .(v) Over and above that there is a writ appeal pending, touching upon the patta issued by the Revenue authority concerned in respect of the suit property in favour of the plaintiff and if in the writ appeal, the Bench of this Court decides the matter, the dispute would come to an end. 9. Thelearned counsel for the plaintiff would submit that the writ Court would not decide the title of anyone over a property. 9. Thelearned counsel for the plaintiff would submit that the writ Court would not decide the title of anyone over a property. However, he would submit that if the matter is remitted back to the lower Court and in the meanwhile if in the writ appeal, the Court renders its judgment it could also be taken into consideration by the civil Court, as the Civil Court is the ultimate authority to decide on title. 10. I could see considerable force in the submission made by the learned counsel for the revision petitioner/plaintiff. In view of the indubitable and indisputable, unarguable and unassailable factual position, which is found displayed and demonstrated before me in the form of record, the trial Judge, after recasting the issues should have necessarily given opportunity to both sides to adduce evidence. It was not open for the trial Judge, after posting the matter for judgment to frame additional issues or recast the issues suo motu and render judgment without disclosing the new issues having been framed and giving opportunity to the parties to adduce evidence. I make it clear that at present I do not decide on the issue whether the revision petitioner/plaintiff is the owner or not, but what I would like to highlight and spot light is that opportunity should have been given by the lower Court to the parties to adduce evidence on the new issues. Hence, the judgement and decree of the lower Court is set aside and the matter is remitted back to the trial Court for giving further opportunity to both sides to adduce evidence concerning the new issues framed by it. Parties shall appear before the lower Court on 2nd July 2010. Court fee paid by the revision petitioner shall be refunded to him. The trial Court shall see to it that the matter is disposed of within a period of three months. Both sides shall co-operate for the expeditious disposal of the matter. The civil revision petitions are disposed of accordingly. No costs.