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2018 DIGILAW 2580 (MAD)

M. Subramani v. K. Ravikumar

2018-08-21

P.T.ASHA

body2018
ORDER : The above Revision Petition is filed challenging the order dated 08.08.2008 of the District Munsif cum Judicial Magistrate, Paramathi, against the order allowing I.A. No. 471 of 2008 in O.S. No. 169 of 2005 which was an application filed by the plaintiff to examine the witnesses who had signed the sale agreement dated 01.06.2005 and others. 2. The facts in a nut shell are narrated herein below :- The Revision Petitioner herein is the 1st defendant in the suit O.S. No. 169 of 2005 filed by the 1st respondent herein for specific performance of the Sale Agreement dated 01.06.2005 in respect of the suit property. The case of the 1st respondent/plaintiff was that the subject matter of the suit O.S. No. 169 of 2005 belonged to the revision petitioner herein. 3. He and the revision petitioner herein had entered into an agreement of a sale where under the 1st respondent had agreed to purchase the suit schedule property for a total sale consideration of Rs.95,000/- of which a sum of Rs.15,000/- was paid as advance. The time fixed for the execution of the sale deed and its registration was a period of 6 Months. It is the case of the 1st respondent that he had paid a further sum of Rs.52,000/- on 10.07.2005 and an endorsement to this effect was made and signed by the revision petitioner. While so, the 4th and 5th respondents herein had sold the property to the 6th respondent herein for the same price therefore left with no other alternative the 1st respondent had filed the suit for specific performance. 4. The revision petitioner herein had filed a written statement wherein, he had contended that the agreement of sale was only a sham and nominal one since, the agreement was entered into only to solve certain family problems, it was his contention that the sale consideration, though mentioned in the agreement, had not passed. He would also contend that on 21.10.2005, the property was sold to the 3rd respondent herein and the property was an ancestral property. The revision petitioner had a 1/2 share in the said property and a 1/2 share belonged to his father. After the demise of his father the property devolved upon himself, his mother and sisters and thereby he became entitled to a 5/8 share and his mother and sisters to a 3/8 share. The revision petitioner had a 1/2 share in the said property and a 1/2 share belonged to his father. After the demise of his father the property devolved upon himself, his mother and sisters and thereby he became entitled to a 5/8 share and his mother and sisters to a 3/8 share. This written statement was filed by the revision petitioner on 12.03.2008. 5. Thereafter, the trial commenced and P.W.1 and P.W.2 were examined on the side of the 1st respondent herein. After the examination of these witnesses the 1st respondent had made an endorsement that he would not be examining the scribe or the attesting witness. After making such an endorsement, the 1st respondent herein came forward with the impugned interlocutory application seeking to examine the scribe and attesting witnesses of the agreement of sale deed dated 01.06.2005 and other witnesses. In the affidavit filed in support of this application the 1st respondent would contend that he was compelled and threatened to make an endorsement that he would not examine the scribe and the attesting witnesses and only on account of this threat by the 2nd respondent herein he had made such an endorsement. 6. The witness Kandasamy informed the 1st respondent that he would not adduce evidence on behalf of the 1st respondent and likewise the 2nd witness Murugan left Paramathi and went to Gujarath. All on account of the 2nd respondents threat the respondents on coming to know about this had filed a memo in the court that all the witnesses had to be examined on the very same day. However, since the witnesses had thereafter assured him that they would come and adduce evidence, the 1st respondent was coming forward with the impugned petition. 7. The revision petitioner herein filed a counter objecting to the petition on the ground that the 1st respondent was trying to fill up the lacuna and cover up the admissions made by P.W.1 in the cross examination. He also contended that having made the endorsement that they did not intend examining the scribe and the witness, the 1st respondent was estopped from taking out this application. 8. The revision petitioner would also contend that except for the witnesses to the agreement of sale, he had no objections to the examination of other witnesses in the event of the court allowing the application. 8. The revision petitioner would also contend that except for the witnesses to the agreement of sale, he had no objections to the examination of other witnesses in the event of the court allowing the application. All the witnesses on the plaintiff side should be examined on the very same day. Therefore, he sought for the dismissal of the application. 9. The learned District Munsif, after hearing the parties and going through the evidence allowed the application. The learned Judge also observed that the application to recall and reopen the plaintiff side evidence filed by the 1st respondent in I.A. Nos. 472 and 473 of 2008 having been allowed on 04.08.2008 no prejudice whatsoever would be caused to the revision petitioner if this petition was allowed. Further the examination of the witnesses was essential to come to the conclusion as to whether there was an agreement between the parties and whether sale consideration had passed. Aggrieved by this order the revision petitioner has filed the present revision. 10. Heard Mrs. S. Umamaheswari for the revision petitioner and Mr. M. Neelakandan for Mr. P.R. Balasubramanian. It is seen from the records that the revision petitioner herein had filed his written statement only on 12.03.2008 and for the first time had denied the passing of consideration, though execution was admitted. That apart the applications to reopen and recall the witnesses in I.A. Nos. 472 and 473 of 2008 has been allowed by consent. In his counter to the impugned application the 1st respondent has also stated the he has no objections to other witnesses being examined except for the attesting witnesses. Having allowed the interlocutory application for reopening and recalling the witnesses by consent no prejudice whatsoever is going to be caused to the revision petitioner if the attesting witnesses are also examined. Further in the affidavit filed in support of the impugned application the 1st respondent has given reasons as to why he had made an endorsement that he was not examining the witnesses and therefore the plea of estoppel fails. 11. The defence of the revision petitioner is that no sale consideration had passed and the document was only a sham and nominal one. This has to be proved by letting in evidence and the best person to adduce evidence in this regard is the attesting witnesses. 11. The defence of the revision petitioner is that no sale consideration had passed and the document was only a sham and nominal one. This has to be proved by letting in evidence and the best person to adduce evidence in this regard is the attesting witnesses. For the court to arrive at a just conclusion the examination of the attesting witnesses would be to be benefit of all parties. I find no infirmity in the judgment passed by the learned District Munsif cum Judicial Magistrate, Paramathi. 12. In the result the Civil Revision Petition is dismissed. The order in I.A. No. 471 of 2008 in O.S. No. 169 of 2005 of the District Munsif cum Judicial Magistrate, Paramathi is confirmed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.