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2015 DIGILAW 1336 (MAD)

Sankaravel v. N. Siva Saravanan

2015-03-09

PUSHPA SATHYANARAYANA

body2015
Judgment 1. As there is a caveat, with the consent of both the counsels, these revisions are taken up for final disposal at the stage of admission. 2. The revision petitioner is the defendant in a suit for permanent injunction. 3. These Civil Revision Petitions are directed against the orders refusing to reopen, recall and receive the documents in evidence. 4. The applications were filed by the defendant to reopen the case, recall the defendant and mark the documents. 5. The defendant had contended that these documents were made available to him only after the evidence was over and the documents are certain subscription receipts issued in the name of his grandfather, certain photographs and a notice from the Tahsildar. The petitioner submitted that unless these documents were marked in the suit, it could cause great prejudice to him. 6. The respondent, who is the plaintiff resisted these applications contending that the evidence in the case was over and the documents sought to be marked by the defendant from the document Nos.3 to 8 are post suit documents and the same cannot be admitted in evidence. 7. It would further contended by the plaintiff that on 7/8/2013, the plaintiff was examined and his evidence was closed. On 11/10/2013, it was posted for the evidence of the defendant whereas he was examined only on 4/11/2013. From November 2013 to 15/4/2014, the defendant had examined seven witnesses. At that stage, the defendant had filed I.A.Nos.424, 425 and 426 of 2014 for the same reliefs of reopen, recall and receive the documents. As the plaintiff did not object to the same, they were allowed on 25/7/2014. Thereafter, the evidence of the defendant continued till August 2014. Then, the matter was posted for arguments and now the arguments are completed and it is posted for judgment. At this belated stage, the defendant has come up with the I.As for the same relief of reopen, recall and receive the documents in evidence. 8. The learned I Additional District Munsif, Tirunelveli, after considering the documents had found that from the documents 3 to 8, they were all documents came into existence after the filing of the suit and the applications were filed by the defendant only to procrastinate the proceedings and there is no bonafide intention in the same. 9. 8. The learned I Additional District Munsif, Tirunelveli, after considering the documents had found that from the documents 3 to 8, they were all documents came into existence after the filing of the suit and the applications were filed by the defendant only to procrastinate the proceedings and there is no bonafide intention in the same. 9. Though the defendant had ample opportunity to mark these documents at the earlier stage, having slept over, the same cannot have any indulgence. 10. These Civil Revisions are filed under Article 227 of the Constitution and the applications are filed under Section 151 of the Code of Civil Procedure. The power of this Court under Section 151 of the Code is also discretionary and the same cannot be exercised as a matter of right. Though Order 18 Rule 17 of the Code of Civil Procedure enables the Court to reopen and recall any witness, who had been already examined, the power to recall any witness can be exercised by the Court on its own motion or an application filed by either of the parties. 11. It has been time and again held by the Supreme Court as well as this Court that such right should be exercised sparingly in the appropriate cases. The defendant/petitioner herein though had exercised this right earlier even after the commencement of the trial has filed the same set of applications for the second time at the verge of delivering the judgment. This attitude of the defendant clearly indicates that the applications are filed only to fill up the omissions in the evidence of the witnesses who have been examined on his side. Order 18 Rule 17 of the Code of Civil Procedure does not automatically enable the party to recall any witness to place any additional evidence which could not be produced at the time of recording the evidence of a particular witness. 12. It is only an enabling provision for the Court to clarify any issue or doubt by recalling the witness suo motu. This inherent power vested with the Court cannot be invoked as and when the party pleases and the Courts also cannot allow the same for the mere asking. When the power given to this Court being inherent, the Courts have to be cautious in exercising the same. This inherent power vested with the Court cannot be invoked as and when the party pleases and the Courts also cannot allow the same for the mere asking. When the power given to this Court being inherent, the Courts have to be cautious in exercising the same. The trial Judge who had been witnessing the demeanor of the parties had thought it fit that the applications cannot be allowed and rightly dismissed the same. 13. From the above facts, in a suit for permanent injunction, it is only for the plaintiff to prove his possession to succeed or failure in his case. Therefore, the defendant need not establish his title or possession. If the plaintiff establishes his possession, he will be entitled for a decree. But the defendant/petitioner herein has been filing several applications for reopening a case, recalling the witness only goes to show that he is dragging on the proceedings and there is no bonafide in his attempt. In such circumstances, there is no need for any interference in the order passed by the learned I Additional District Munsif, Tirunelveli. 14. In the result, these Civil Revision Petitions are dismissed, confirming the order passed in I.A.Nos.890, 891 and 892 of 2014 in O.S.No.98 of 2013 on the file of the First Additional District Munsif Court, Tirunelveli. No costs. Consequently, the connected Miscellaneous Petition is also dismissed.