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2015 DIGILAW 1707 (MAD)

Santhirakani v. Vijaya @ Viji

2015-03-30

PUSHPA SATHYANARAYANA

body2015
Judgment :- 1. Aggrieved by the common order dated 17.7.2014 passed by the III Additional District Judge, Thoothukudi, in I.A. Nos. 72 to 74 of 2014 wherein and by which the petitions filed to reopen, recall D.W.1 and to receive document respectively, were dismissed, the defendants 1 to 5 in O.S. No. 61 of 2012 have come up with the instant Civil Revision Petitions. 2. From the materials available on record, it is seen that in a suit for partition of the year 2012, trial was completed on 06.3.2014 and the suit was posted for arguments on 26.3.2004. While so, the defendants had filed three applications in I.A. Nos. 72 to 74 of 2014 for reopening, recalling D.W.1 and for receiving the document in evidence respectively. The document sought to be marked is a Will written by one Shanmughavel Nadar executed on 05.4.1972. The certified copy of the Will was sought to be marked on the ground that the original Will is not available. For such purpose, the other applications to reopen and recall D.W.1 were filed. 3. According to the defendants, the Will was executed by one Shanmughavel Nadar which had come into force after his death. As per the same, it devolved on his male heirs and thereafter, to his grand children. It is stated that based on the said Will, a settlement deed was executed by the first defendant on 30.11.2012. Stating that the original Will is lost, the defendants wanted to mark the certified copy of the said Will. The said applications were opposed by the plaintiffs contending that loss of the Will is not even pleaded in the written statement and since the applications are filed at belated stage after the suit itself has been posted for arguments, the same cannot entertained. 4. The learned III Additional District Judge, Thoothukudi, after consideration of the facts and evidence, dismissed the applications holding that the petitioner has filed the petitions at belated stage. Aggrieved by the same, the defendants are before this Court with the present Civil Revision Petitions. 5. Heard the learned counsel appearing for the revision petitioners as well as the learned counsel for the respondents and perused the records. 6. The only question that has to be decided in these revision petitions is whether the applications to reopen, recall D.W.1 and receive the document can be allowed. 7. 5. Heard the learned counsel appearing for the revision petitioners as well as the learned counsel for the respondents and perused the records. 6. The only question that has to be decided in these revision petitions is whether the applications to reopen, recall D.W.1 and receive the document can be allowed. 7. To decide the point in issue, at the outset, it would be relevant to refer to the written statement filed on behalf of the defendants in the suit. It is true that in paragraph 13 of the written statement, there is a mention about the said Will. But it only states that Shanmughavel Nadar had executed a Will on 05.4.1972 which was registered as document No. 8/1972 and the said fact was within the knowledge of the plaintiffs. It is to be noted here that other than this, the defendants have not stated anything to the effect that the original Will is lost or the attestors are not available or even that they wanted to mark only the certified copy of the document. The trial Court also had given a finding that the defendants had not marked the copy of the Will along with the written statement. Even in the cross-examination of P.W.1, there was no suggestion about the loss of the Will. D.W.1 though had deposed that he would file copy of the alleged Will, had not stated that the original was not available and it was lost. D.W.2 also had not stated anything in his evidence about the loss of the Will but had denied only the suggestion that it was with his mother. Based on the above depositions of the parties, the trial Court had come to the conclusion that without even pleading about the loss of the Will or deposing to that effect in the evidence, the defendants cannot, at the belated stage when the case was posted for arguments, file these applications to reopen and mark the document. It is pertinent to point out that the suit was filed in the year 2012 and the defendants had consciously pleaded about the registration of the Will but deliberately omitted to either produce the copy of the Will at the time of filing the written statement or even during the trial. It is pertinent to point out that the suit was filed in the year 2012 and the defendants had consciously pleaded about the registration of the Will but deliberately omitted to either produce the copy of the Will at the time of filing the written statement or even during the trial. However, at the belated stage, this was sought to be marked which, in the considered opinion of this Court, was rightly dismissed by the trial Court. 8. Order 18 Rule 17 CPC is an equitable relief. The same cannot be invoked for the sake of argument. The Hon'ble Apex Court as well as this Court have, time and again, held that the power to recall any witness under Order XVIII Rule 17 CPC can be exercised by the Court either in its own motion or an application filed by any parties to the suit. But such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination and the same should be sparingly used in appropriate cases. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial Court to permit recall of such a witness for re-examination in-chief with the permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present petitions, no such case has been made out. On the other hand, it is clear that the said applications have been filed only with a view to fill up the lacunae found at the time of recording evidence and the same cannot be entertained. 9. Secondly, it is also reiterated by the Hon'ble Supreme Court and this Court in a catena of decisions that the trial in a case has to be continuous followed by the argument without any gap. 9. Secondly, it is also reiterated by the Hon'ble Supreme Court and this Court in a catena of decisions that the trial in a case has to be continuous followed by the argument without any gap. But in this case, the trial was completed on 06.3.2014 and the suit was posted for arguments on 26.3.2004 and these applications were filed by the defendants on 20.3.2014. Besides delay, when there is no pleading, it is settled principle that no amount of evidence can be admitted without pleading. 10. At this juncture, it would not be out of place for this Court to make a reference to the judgment of the Hon'ble Supreme Court in Bagai Construction vs. Gupta Building Material Store [ (2013) 14 SCC 1 ] wherein the scope of Order XVIII Rule 17 CPC in similar circumstances has been decided. The relevant passages found in paragraphs 14 and 15 may be usefully re-produced below:- Para 14: “The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff has not placed these bills on record. In such circumstance, as rightly observed by the trial Court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of judgment, we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trial Court, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words “at any stage” occurring in Order XVIII Rule 17 casually set aside the order of the trial Court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW-1 to prove those bills. Unfortunately, the High Court taking note of the words “at any stage” occurring in Order XVIII Rule 17 casually set aside the order of the trial Court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW-1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of the court and Court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial Court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 of CPC, the plaintiff cannot be permitted. Para 15: After change of various provisions by way of amendment in the CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still plaintiff has not placed those bills on record. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. It further shows that final arguments were heard on number of times and judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC.” In view of the above discussion, I do not find any infirmity or illegality in the common order passed by the Court below in I.A. Nos. 72 to 74 of 2014 in O.S.No. 61 of 2012 and the same is hereby confirmed. Accordingly, the Civil Revision Petitions are dismissed. However, in the circumstances of the case, there shall be no order as to costs.