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2010 DIGILAW 2909 (MAD)

H. S. Dawood Sahib (Died) v. Shanmugam

2010-07-16

G.RAJASURIA

body2010
Judgment :- 1. Inveighing the orders dated 09.12.2009 and 23.11.2009 respectively, passed in E.P.No.205 of 2007, E.A.No.206 of 2009 in E.P.No.205 of 2007 in O.S.No.605 of 1992 by the learned District Munsif, Mannargudi, these civil revision petitions are focussed. 2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of these two revisions would run thus: (i) The revision petitioners in both the revisions filed O.S.No.605 of 1992 seeking the following reliefs: "(a) To restrain the defendant, his men and servants not to interfere with the peaceful possession and enjoyment of the plaintiffs 2 to 5 by an order of permanent injunction; and (b) for costs." (ii) The suit was decreed ex parte on 12.06.1996. Consequently, E.P.No.205 of 2007 was filed by the revision petitioners herein on the allegation that the respondent herein, despite injunction decree operating against him trespassed into the suit property and causing disturbance to the revision petitioners. It so happened that no oral or documentary evidence was adduced on the side of the petitioners, even though they happened to be the petitioners in the E.P. complaining about the alleged violation of the injunction decree. Whereas, the respondent/judgment debtor on his side, adduced oral and documentary evidence. After the closure of the evidence, the revision petitioners/decree holders filed E.A.No.206 of 2009 for re-opening the matter. However, the Court dismissed that E.A.No.206 of 2009 and thereafter, the Executing Court dismissed the E.P itself based on the evidence adduced on the side of the judgment debtor. 3. Being aggrieved byand dissatisfied with the same, these two revisions are focussed, one as against the order of dismissal passed in E.A.No.206 of 2009 and another revision as against the order of dismissal of the E.P. by the same Executing Court. The grounds as found set out in these revisions are identical, which could pithily and precisely be stated thus: The Executing Court should not have allowed evidence to be adduced by the judgment debtor touching upon the main issues involved in the suit itself. The judgment debtor has not filed any application under Section 47 of CPC also. Due opportunity was not given to the decree holders to adduce evidence before the Court. The E.A. was dismissed unjustifiably on some flimsy grounds. 4. The judgment debtor has not filed any application under Section 47 of CPC also. Due opportunity was not given to the decree holders to adduce evidence before the Court. The E.A. was dismissed unjustifiably on some flimsy grounds. 4. The learned counsel for the revision petitioners, placing reliance on the grounds of revision would advance his arguments that peculiarly in this case all the decree holders are ladies, even though initially one Dawood Sahib filed the suit. Subsequently, he died and his L.Rs. as many as fours Pardanishi ladies have been added and they are the revision petitioners before this Court and they could not get appropriate assistance to prosecute the EP diligently and because of that alone, they have been put to discomfiture and difficulties. But the Executing Court failed to take into consideration their plight sympathetically. Accordingly, the learned counsel for the revision petitioners prays for allowing both the revisions and set aside both those impugned orders and give one more opportunity to the decree holders to adduce evidence to prove that only after the decree passed, the judgment debtor trespassed into the suit property. 5. Per contra, by way of torpedoing and pulverising the arguments as put forth and set forth on the side of the revision petitioners/decree holders, the learned counsel for the respondent/judgment debtor would submit his arguments, the gist and kernel of them would run thus: It was the duty of the decree holders to adduce evidence. The E.P. was pending for nearly one year even then they have not raised their little finger to do anything in the process of adducing evidence. Only after the closure of the evidence on the respondents side, the revision petitioners/decree holders filed such E.A. simply for reopening and even that was not a full fledged petition and no steps have been taken to examine the alleged Govindaraj and in such a case, no leniency could be shown towards the revision petitioners. Accordingly, the learned counsel for the respondent prays for the dismissal. 6. The point for consideration is as to whether there is any illegality or impropriety in the impugned orders passed by the lower Court and the revision petitioners could be given one more opportunity to adduce evidence in the E.P.? 7. Accordingly, the learned counsel for the respondent prays for the dismissal. 6. The point for consideration is as to whether there is any illegality or impropriety in the impugned orders passed by the lower Court and the revision petitioners could be given one more opportunity to adduce evidence in the E.P.? 7. At the outset, I would like to entirely agree with the submission made by the learned counsel for the judgment debtor for the reason that the maxim, Affirmanti non neganti incumbit probatio -The burden of proof lies upon him who asserts and not upon him who denies, would clearly exemplify and demonstrate that it is the bounden duty of the person who is before the Court to prove his averments and allegations and it is not for the respondent to rebut what are all contended in the affidavit of the execution petitioners. But in this case, diligently the judgment debtor adduced evidence and based on that the lower Court furnished its reasons for dismissing the E.P. 8. While I agree with the submissions made by the learned counsel for the respondent/judgment debtor that there were laches on the part of the revisions petitioners, only one aspect weighs much in the mind of this Court that here all the revision petitioners/decree holders happened to be Pardanishi ladies and in such a case, their interest has to be protected. A mere perusal of the records would clearly display that the revision petitioners were not properly assisted in prosecuting the E.P; had they been properly assisted, certainly witnesses would have been examined on the side of the revision petitioners/decree holders. The decree holders in my opinion were kept in the dark and they were not in a position to understand the real purport of the E.P and prosecute it in the lower Court. Hence, considering the aforesaid aspect I would like to set aside the order of both the Courts below and allow these revisions with the following direction: The petitioners shall be given opportunity to examine the witnesses and also adduce evidence on their side and whereupon, the respondent/judgment debtor shall have the right to cross examine them and thereafter, further opportunity also shall be given to the judgment debtor to adduce fresh evidence. The evidence so far recorded on the side of the respondent shall remain on record and he could further rely upon the same on his side. The evidence so far recorded on the side of the respondent shall remain on record and he could further rely upon the same on his side. Accordingly, the matters are remitted back the Executing Court to dispose of the E.P. in the aforesaid line by 31st August 2010, on payment of cost of Rs.3,000/-(Rupees three thousand only) by the revision petitioners in favour of the respondent by the end of this month. If there is non compliance, then this order will not enure to benefit of the revision petitioners. Accordingly, these civil revisions petitions are allowed. No costs.