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2015 DIGILAW 938 (MAD)

S. K. Sreedhar v. R. Raghavan

2015-02-16

P.R.SHIVAKUMAR

body2015
ORDER These revisions have been preferred under Article 227 of the Constitution of India questioning the legality of the common order passed by the learned trial judge (VII Assistant Judge), City Civil Court, Chennai dated 28.07.2011 made in I.A.Nos.8253 and 8254 of 2011 in O.S.No.12666/2009. 2. The respondents herein/plaintiffs filed the suit O.S.No.12666 of 2009 for a decree directing the petitioner herein/defendant to produce statement of accounts with regard to the running account of financial transaction he had with the first plaintiff for the years 2005-2007 and to reconcile the statement of account as per plaint document No.18, namely acknowledgement of the Defendant’s Lawyer, for a mandatory injunction directing the revision petitioner/defendant to return the blank cheques and blank promissory notes allegedly extorted from the respondents herein/plaintiffs in the years 2005-2007 and for a permanent injunction restraining the revision petitioner/defendant from making use of the blank promissory notes and blank cheques allegedly extorted from the revision petitioner/defendant. 3. The suit was contested by the revision petitioner/defendant. The trial progressed in a slow pace due to the repeated adjournments taken by the respondents herein/plaintiffs. Even for the completion of the examination of the revision petitioner/defendant, who figured as the sole witness (DW1) on his side, nearly eight months came to be consumed. Thereafter the counsel appearing for both parties advanced their oral arguments, besides submitting written arguments and the case was reserved for judgment to be pronounced on 28.03.2011. Even on the day fixed for the pronouncement of the judgment, namely 28.03.2011, the trial judge did not pronounce judgment and the case came to be adjourned. During the month of April 2011, the respondents herein/plaintiffs filed the above said I.A.Nos.8253 and 8254 of 2011 for reopening the case and for recalling DW1 for further cross examination. 4. The petition was opposed by the petitioner herein/defendant by filing a detailed common counter affidavit contending that the filing of those applications was nothing but an attempt to protract the case, besides pointing out that the supporting affidavit did not make out a case for reopening the case and recalling of DW1 for further cross examination. 5. The learned trial judge chose to allow the petitions by the impugned common order dated 28.07.2011. 5. The learned trial judge chose to allow the petitions by the impugned common order dated 28.07.2011. In the said order, the learned trial judge observed that the counsel for the respondents herein/plaintiffs wanted to cross examine DW1 based on certain documents and that denying such an opportunity would result in an irreparable loss and hardship to the respondents herein/plaintiffs, whereas granting such an opportunity to the respondents herein/plaintiffs would not cause such hardship or loss to the revision petitioner/plaintiff comparable to the hardships of the respondents herein/plaintiffs in the event of rejection or the dismissal of the petitions. Accordingly, the learned trial Judge allowed both the petitions. 6. Mr. R. Natarajan, learned counsel for the petitioner/defendant, after taking this court through the averments made in the supporting affidavit and also the counter averments made in the counter affidavit, contends that no valid reason has been assigned by the respondents in the supporting affidavit seeking reopening of the case and recalling of DW1 and that excepting a bald statement that certain questions were omitted to be put to DW1 when he was cross-examined by the counsel for the respondents herein/plaintiffs, no other reason worth mentioning came to be assigned by the respondents herein/plaintiff. The learned counsel also pointed out the fact that the affidavit did not refer to any document with reference to which DW1 was sought to be cross-examined further and that the respondents herein/plaintiffs had also failed to state the particulars of the documents based on which further cross-examination was sought to be made. The learned counsel also pointed the fact that even the slightest indication of the aspect with regard to which further cross examination was sought to be made had not been made in the supporting affidavit and that still citing untenable reasons, the learned trial judge simply passed the impugned common order allowing both the applications. 7. As against the above said contention of the learned counsel for the petitioner/defendant, Mr. T.G. Dhinesh, learned counsel for the respondents/plaintiffs would contend that the revision petitioner will not be prejudiced by reopening the case for further cross examination of DW1 and that therefore the impugned common order of the learned trial Judge cannot be interfered with in exercise of the power of superintendence of this court over the Subordinate courts under Article 227 of the Constitution of India. 8. 8. This court paid its anxious consideration to the above said submissions made on both sides. 9. This court finds substance in the contention of the learned counsel for the petitioner/defendant. The very fact that the counsel for the respondents/plaintiffs took nearly eight months for completing the cross examination of DW1 would make it clear that exhaustive cross examination had been made, besides making an attempt to drag on the case as long as possible. The fact that after the closure of evidence on both sides, the parties, through their advocates, advanced oral arguments without any murmur and also submitted written arguments, based on which case was reserved on 11.03.2011 and the judgment was scheduled to be pronounced on 28.03.2011 and the further fact that even on the date fixed for the pronouncement of judgment, namely on 28.03.2011, the trial judge did not pronounce judgment and the case came to be adjourned for judgment till the respondents herein/plaintiffs filed the applications for reopening and recalling are to be taken into consideration. The short affidavit filed in support of the petitions contains the following averments alone and it shall be expedient to extract the relevant portion. I humbly submit that the defendant was examined as PW1 and his evidence was over. He has not let in any further evidence. I humbly submit that some more questions to be asked in the cross examination of the defendant pursuant to some more documents. Further, I came to know later some of the aspects has to be asked and I instructed my Advocate to further cross examine DW1 the defendant. I humbly submit that in the interest of justice this Hon’ble Court may be pleased to permit me to recall DW-1, S.K. Sreedhar for further cross examination and for that purpose the case has got to be reopened on my side otherwise, I will be put to very great hardship. 10. A perusal of the same will make it clear that the respondents herein/plaintiffs had not made out any case and they had not even stated any valid reason for seeking reopening of the case and recalling of DW1 for further cross-examination. Still, the learned trial judge seems to have leaned towards the respondents herein/plaintiffs and passed the impugned common order. A perusal of the same will make it clear that the respondents herein/plaintiffs had not made out any case and they had not even stated any valid reason for seeking reopening of the case and recalling of DW1 for further cross-examination. Still, the learned trial judge seems to have leaned towards the respondents herein/plaintiffs and passed the impugned common order. This court does have no hesitation in coming to the conclusion that the common order of the learned trial judge is a fit one for being interfered with and set aside by exercising the power of superintendence of this court under Article 227 of the Constitution of India, as the said order cannot stand the scrutiny of the court. In the result, both the civil revision petitions are allowed. The impugned common order dated 28.07.2011 and the decretal orders made in I.A.Nos.8253 and 8254 of 2011 in O.S.No.12666 of 2009 passed by the learned VII Assistant Judge, City Civil Court, Chennai, are set aside. The learned trial judge (VII Assistant Judge, City Civil Court) is directed to fix a date for pronouncement of judgment and pronounce the judgment within 15 days from the date of receipt of a copy of this order. However, there shall be no order as to cost in both the civil revision petitions. Consequently, the connected miscellaneous petitions are closed.