Soosaimariyayee, Rep. by her Power Holder Vasantha v. Johnson
2016-02-17
V.M.VELUMANI
body2016
DigiLaw.ai
ORDER : These Civil Revision Petitions have been filed to set aside fair and decretal order, dated 01.10.2015, passed in I.A.Nos.708 and 709 of 2015 in C.T.O.P.No.1 of 1998, by the learned Principal District Munsif, Nagercoil. 2. Since the issues involved in both the Civil Revision Petitions and the parties are one and the same, they are heard together and disposed of by this common order. 3. The petitioner herein is the petitioner in C.T.O.P.No.1 of 1998 and the respondent herein is the Power Holder of S.R.Manoharan, who is the respondent in the said C.T.O.P. The respondent is the owner of vacant site mentioned in Schedule II Petition, which was leased out to the petitioner's husband. The petitioner filed C.T.O.P.No.1 of 1998, seeking for a direction to the respondent to sell the petition mentioned vacant site to her as per the market price fixed by the Court. The respondent is contesting the said C.T.O.P. 4. The petitioner's daughter-in-law, the Power of Attorney of the petitioner was examined as P.W.1. The learned counsel for the respondent cross-examined her with regard to evidence given by her husband in another proceeding in O.S.No.469 of 1997. The learned counsel for the petitioner filed a petition to delete the said portion of evidence, which was dismissed by the learned Principal District Munsif, Nagercoil. 5. Against the said order, one J.Vasantha, W/o.Dr.Joseph, the petitioner herein filed C.R.P.(MD) No.1730 of 2015 before this Court. The said C.R.P. is also disposed of along with the above C.R.Ps. by separate order, dated 17.02.2016. 6. The respondent herein and the second respondent was examined as R.W.1. The learned counsel for the petitioner cross-examined R.W.1 in part on number of occasions. On 31.08.2015, the learned counsel for the petitioner after cross-examining R.W.1 for some time, left the Court Hall stating that he is not interested to cross-examine R.W.1. any further. In view of the said statement, examination of R.W.1 was closed on that day and the said C.T.O.P. was posted for arguments. 7. The petitioner filed I.A.Nos.708 and 709 of 2015 to re-open the case for further cross-examination of R.W.1 and to recall the evidence of R.W.1, for further cross-examination.
any further. In view of the said statement, examination of R.W.1 was closed on that day and the said C.T.O.P. was posted for arguments. 7. The petitioner filed I.A.Nos.708 and 709 of 2015 to re-open the case for further cross-examination of R.W.1 and to recall the evidence of R.W.1, for further cross-examination. The petitioner stated that R.W.1 gave evasive replies and the Court recorded evidence in violation of Indian Evidence Act and therefore, the learned counsel for the petitioner had lost faith in the Court and had stopped his cross-examination and sought for another opportunity to complete the cross-examination. The Court recorded that the counsel has no interest to cross-examine R.W.1 and closed the evidence and posted the C.T.O.P. for arguments. The cross-examination of R.W.1 was not completed and hence, prayed for reopening and recalling R.W.1 and the learned counsel for the petitioner sought for another opportunity to complete cross-examination of R.W.1. 8. The respondent filed counter statement denying all the allegations made by the petitioner. The case was posted on 19 times for cross-examination of R.W.1, but the learned counsel for the petitioner only on six times cross-examined R.W.1 in part and the case is pending for 18 years and only with a view to drag on the proceedings, the petitioner has come forward with the two applications. 9. The learned Judge considering all the facts and circumstances, by common order dated 01.10.2015, dismissed both the applications. Against the said order, the present Civil Revision Petitions are filed. 10. The learned counsel for the petitioner submitted that due to filing of C.R.P.(MD)No.1730 of 2015, some bitterness arose between the then Presiding Officer and the learned counsel for the petitioner. The learned Judge without knowing these facts, dismissed the applications based on the recordings of the previous Presiding Officer. The evidence of R.W.1 is not completed and the petitioner seeks an opportunity to complete the cross-examination. The petitioner has given proper reason for re-opening and recalling the evidence of R.W.1. The learned Judge erroneously recorded that the learned counsel for the petitioner walked out of the Court Hall expressing displeasure over recording of evidence by the Presiding Officer. 11. The learned counsel for the respondent contended that the petitioner was given ample opportunity for cross-examination of R.W.1, but was dragging on the proceedings.
The learned Judge erroneously recorded that the learned counsel for the petitioner walked out of the Court Hall expressing displeasure over recording of evidence by the Presiding Officer. 11. The learned counsel for the respondent contended that the petitioner was given ample opportunity for cross-examination of R.W.1, but was dragging on the proceedings. The power of recalling the evidence is a discretionary power and the petitioner is not entitled to cross-examine R.W.1 further and it will amount to miscarriage of justice. 12. In support of his submissions, the learned counsel for the respondent relied on the following Judgments: (i) 2011 (3) CTC 422 [K.K.Velusamy Vs. N.Palanisamy], wherein in paragraph 8, it has been held as follows: "8. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18, Rule 17 can be exercised by the Court either on its own motion or on an application filed by any of the parties to the Suit requesting the Court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the Court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, 2009 (4) SCC 410 ]. Order 18, Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18, Rule 17 is primarily a provision enabling the Court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the Court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions." (ii) 2011 (9) SCC 678 [Shiv Cotex Vs.
Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions." (ii) 2011 (9) SCC 678 [Shiv Cotex Vs. Tirgun Auto Plast Private Limited and others], wherein in paragraph 16, it has been held as follows: "16. No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. It is true that cap on adjournments to a party during the hearing of the suit provided in proviso to Order 17 Rule 1 CPC is not mandatory and in a suitable case, on justifiable cause, the court may grant more than three adjournments to a party for its evidence but ordinarily the cap provided in the proviso to Order 17 Rule 1 CPC should be maintained. When we say `justifiable cause' what we mean to say is, a cause which is not only `sufficient cause' as contemplated in sub-rule (1) of Rule 1 of Order 17 CPC but a cause which makes the request for adjournment by a party during the hearing of the suit beyond three adjournments unavoidable and sort of a compelling necessity like sudden illness of the litigant or the witness or the lawyer; death in the family of any one of them; natural calamity like floods, earthquake, etc. in the area where any of these persons reside; an accident involving the litigant or the witness or the lawyer on way to the court and such like cause. The list is only illustrative and not exhaustive." 13. I have heard the learned counsel for the parties and perused materials available on record and also considered the Judgments relied on by the learned counsel for the respondent. 14. The point for consideration in the Civil Revision Petitions, is whether the petitioner has shown sufficient cause for re-opening and recalling the evidence of R.W.1. 15. From the materials on record, it is seen that the learned counsel for the petitioner took number of adjournments while cross-examining R.W.1 and in spite of number of opportunities given, he did not complete the cross-examination. On 31.08.2015, the learned counsel for the petitioner walked out of the Court Hall stating that he is not interested in the cross-examination of R.W.1.
On 31.08.2015, the learned counsel for the petitioner walked out of the Court Hall stating that he is not interested in the cross-examination of R.W.1. In the circumstances, the evidence of R.W.1 was closed and the main O.P. was posted for arguments. The reasons given by the petitioner are not valid and sufficient, for re-opening and recalling the evidence of R.W.1. It is well settled that adjournments should not be granted without any valid reason. In the present case, the learned counsel for the petitioner took number of adjournments to cross-examine R.W.1, but, did not complete the cross-examination and walked out of the Court Hall. In the circumstances, it is not a fit case to exercise the discretionary power of Court to re-open and recall the evidence of R.W.1. The Judgments relied on by the learned counsel for the respondent are squarely apply to the facts of these present cases. The learned Judge considered all the facts and circumstances of the case and has given cogent and valid reasons for dismissing the applications. There is no infirmity or illegality in the impugned common order, dated 01.10.2015, passed in I.A.Nos. 708 and 709 of 2015 in C.T.O.P.No.1 of 1998, by the learned Principal District Munsif, Nagercoil, warranting interference by this Court. Hence, the Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.