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2012 DIGILAW 3073 (MAD)

H. H. Karthika Thirunal Lakshmi Bayi, P1 to P5 -rep. by their Power Agent A. C. R. Raj Ganesan v. Sarath Kakumanu

2012-07-17

V.DHANAPALAN

body2012
Judgment :- 1. This Civil Revision Petition is filed for a direction to the learned XIV Assistant City Civil Judge to take up the I.A.S.R.No.4087 of 2012 on file before proceeding with the enquiry in O.S.No.3149 of 2008. 2. It is the case of the revision petitioners that they are plaintiffs in the suit filed for permanent injunction restraining the defendants from in any manner interfering with their peaceful possession and enjoyment of the property at No.1 Lattice Bridge Road, Adyar, Chennai-20 along with the suit. The respondents/defendants 1, 6 and 7 have filed a written statement. While so, the respondents/defendants 1, 6 and 7 filed a petition in I.A.No.19064 of 2011 under Order VIII Rule 1-(3) read with Section 151 C.P.C. praying to permit them to file documents in O.S.No.3149 of 2008 as mentioned in the list of documents attached to the petition. 3. When the said application was taken up by the Trial Court, the petitioners therein, i.e. Defendants 1, 6 and 7 entered appearance. But, as the respondents therein were not present, they were called absent and set exparte. Hence, the Trial Court, taking note of the claim of Defendants 1, 6 and 7 to mark the petition mentioned documents, allowed the petition subject to marking of the original or certified copies of the documents in O.S.No.3149 of 2008 and also subject to proof and relevancy on the ground that if the petition is not allowed, Defendants 1, 6 and 7 would be put to hardship to contest the matter. In the said circumstances, the petitioners/plaintiffs are before this court for a direction to the Trial Court to take up the I.A. filed in I.A.S.R.No.4087 of 2012 praying to set aside the exparte order passed in I.A.No.19064 of 2011. 4. In the counter affidavit, respondents/Defendants 1, 6 and 7 have stated that the petitioners/plaintiffs have conveniently suppressed the fact that after passing of orders in I.A.No.19064 of 2011 on 03.01.2012, the petitioners accepted the said order and filed their proof affidavit on 13.02.2012. Thereafter, P.W.1 was cross-examined in part by the counsel for the respondents on 20.02.2012. The matter was thereafter adjourned at the request of the petitioners for continuation of cross-examination of P.W.1 to 23.02.2012, 28.02.2012, 06.03.2012, 09.03.2012, 14.03.2012 and 19.03.2012. A copy of the petition in the present Civil Revision Petition was filed on 24.02.2012. Thereafter, P.W.1 was cross-examined in part by the counsel for the respondents on 20.02.2012. The matter was thereafter adjourned at the request of the petitioners for continuation of cross-examination of P.W.1 to 23.02.2012, 28.02.2012, 06.03.2012, 09.03.2012, 14.03.2012 and 19.03.2012. A copy of the petition in the present Civil Revision Petition was filed on 24.02.2012. Therefore, it was the duty of the petitioners herein to have disclosed the fact of filing their proof affidavit on 13.02.2012 and that P.W.1 was partly cross-examined on 20.02.2012 i.e. 4 days before filing the Civil Revision Petition. Thus, the petitioners are guilty of suppresio veri and suggestio falsi and deserve no indulgence from this Court. This is without prejudice to the stand of the respondents herein and that no prejudice or hardship will be caused to the petitioners nor will the merits of the case be affected in any manner by I.A.No.19064 of 2011 in O.S.No.3149 of 2008 being disposed of. 5. Ms.A.Arulmozhi, learned counsel for the petitioners would contend that unless the application in I.A.S.R.No.4087 of 2012 is taken up, there will be lot of prejudice and hardship to the petitioners, as they have a valid objection to raise when the documents in question are marked by the Trial Court. 6. On the other hand, Mr.R.Parthasarathy, learned counsel appearing for the respondents would contend that it is going to be an empty formality, if the petitioners are allowed to raise an objection. He would submit that if the document is once taken on file, they have every right to object at the time of taking the matter for trial. 7. Heard the learned counsel for the parties and perused the papers annexed in the typed set of papers. 8. Admittedly, the petitioners are plaintiffs. They filed a suit for permanent injunction and the matter is on completion of the pleadings. At that stage, the respondents/defendants 1, 6 and 7 have filed an application to mark certain documents and the the said petition was allowed by the Trial Court. While allowing the petition, it is seen that as there was no representation for the respondents therein, the Trial Court called them absent and set exparte. 9. In the light of the above, in order to give fair justice to the parties concerned, it is necessary for the Trial Court to take up the I.A.S.R.No.4087 of 2012 and then proceed further in the matter. 10. 9. In the light of the above, in order to give fair justice to the parties concerned, it is necessary for the Trial Court to take up the I.A.S.R.No.4087 of 2012 and then proceed further in the matter. 10. Accordingly, the learned XIV Assistant City Civil Judge, Chennai is directed to take up I.A.S.R.No.4087 of 2012 and proceed with the enquiry after giving an opportunity of hearing to the parties to the proceedings and pass appropriate orders in accordance with law within a period of two (2) weeks from the date of receipt of a copy of this order. The Civil Revision Petition is disposed of with the above direction. No costs. Consequently, connected M.P.No.1 of 2012 is closed.