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2013 DIGILAW 2379 (MAD)

D. Sengottaian v. L. Duraisamy

2013-07-09

T.S.SIVAGNANAM

body2013
Judgment : 1. Heard Mr. R.Prabhakar, learned counsel appearing on behalf of Mr.N.Manoharan, learned counsel for the petitioner. 2. Though the respondents have been served and the names have been printed in the cause list, none appears for the respondents. 3. This revision filed under Article 227 of the Constitution of India is directed against the order dated 10.3.2010 in I.A.No.213 of 2010 in O.S.No. 280 of 2004 on the file of the District Munsif cum Judicial Magistrate, Perundurai. 4. The petitioner is the second plaintiff in the suit. The suit was filed by the first plaintiff-Kuppathal @ Kuppayammal for partition. The said Kuppathal died on 9.5.2008. The petitioner herein filed an application to implead himself as a second plaintiff in I.A.No. 906 of 2008. That application was allowed by an order dated 26.11.2008 and an amendment was also allowed by an order dated 19.1.2009 in I.A.No. 64 of 2009. Thereafter, the petitioner filed an application in I.A.No. 213 of 2010 to re-open the suit for plaintiff's side further evidence. That application was rejected and challenging the said order, this civil revision petition has been filed. 5. The case of the petitioner/second plaintiff is that the deceased first plaintiff has executed a Will dated 11.7.2001 in his favour and therefore, he sought permission of the Court to mark the Will dated 11.7.2001 by reopening the suit. The Court below rejected the application on the ground that the evidence was concluded on 28.2.2007 and the petitioner, inspite of lapse of four years, did not come forward to examine himself as a witness and produce the alleged Will dated 11.7.2001. However, it is seen that the petitioner was impleaded as the second plaintiff in the suit only on 26.11.2008 in I.A.No. 906 of 2008. Further, from the cause title of the amended plaint, it is seen that there was another amendment ordered by the Court in I.A.No. 64 of 2009, on 19.1.2009. Therefore, for all practical purposes, the petitioner herein became the plaintiff in the suit only on 19.1.2009. Therefore, the observation of the Court below that the petitioner had been keeping quiet for four years may not be factually correct. That apart, it has to be noted that the plaintiff should be given a chance to produce the document viz., the Will dated 11.7.2001 under which, the petitioner claims a right. Therefore, the observation of the Court below that the petitioner had been keeping quiet for four years may not be factually correct. That apart, it has to be noted that the plaintiff should be given a chance to produce the document viz., the Will dated 11.7.2001 under which, the petitioner claims a right. To foreclose the petitioner's right to produce such a document, would cause prejudice to the case of the plaintiff and more so, when the petitioner herein became the plaintiff only in the year 2009. Therefore, this Court is inclined to accept the case of the petitioner. Accordingly, this civil revision petition is allowed and the impugned order dated 10.3.2010 in I.A.No.213 of 2010 in O.S.No. 280 of 2004 is set aside. The trial Court is directed to re-open the case to enable the petitioner to produce the Will dated 11.7.2001 and proceed with the matter in accordance with law. It is needless to state that it is open to the respondents to raise whatever objections available under law on the said document. Consequently, M.P.No. 1 of 2010 is closed. No costs.