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2018 DIGILAW 3320 (MAD)

Pazhani v. Valliammal

2018-09-27

P.T.ASHA

body2018
JUDGMENT P.T. ASHA, J. 1. The issues and the parties involved in both the Civil Revision Petitions are one and the same and therefore, they are disposed of by this common order. 2. The above Civil Revision Petitions are filed by the 1st defendant challenging the common order passed by the learned Subordinate Judge, Gingee in dismissing I.A.Nos.138 and 189 of 2011 in O.S.No.2 of 2007 which were the applications filed to recall D.W.1 and to mark additional documents on the side of the defendants. 3. The suit has been filed for declaration and partition in respect of the suit properties. The 2nd defendant had filed a written statement in which in paragraph 9, she had contended that the 6th item of the property in 'A' Schedule has been sold by the 1st defendant to Kamaraj and Rajendran in the year 1998 under registered sale deed and she had also stated that the suit is bad for non-joinder of necessary parties. 4. When the matter was posted for evidence of the 4th defendant, the defendants 1 and 3 had come up with the impugned applications for recalling D.W.1 and for reopening the evidence to mark certain documents on the side of the defendants. In the affidavits filed in support of the impugned petitions, they would contend that they have come into possession of the documents only now and therefore, the same has to be marked. The plaintiffs have objected to the same, stating that the defendants 1 and 3 ought to have filed these documents even prior to their evidence and this is only an attempt to protract proceedings. 5. The learned Subordinate Judge by her order dated 15th July 2011, proceeded to dismiss the applications on the ground that at the time of filing of written statement itself, the defendants 1 and 3 were aware of the documents and they must have taken steps to proceed at the time of the trial and being not convinced with the reasons stated in the affidavits filed in support of the impugned applications, she dismissed the said applications. 6. Aggrieved by the same, the 1st defendant has filed these Revision Petitions. 7. 6. Aggrieved by the same, the 1st defendant has filed these Revision Petitions. 7. Mr.R.Rajarajan, learned counsel appearing on behalf of the revision petitioner would submit that the revision petitioner is not attempting to introduce any new case, since even in the written statement, the 2nd defendant has categorically mentioned about these two documents and in the affidavits filed in support of the impugned applications, the defendants 1 and 3 have given reasons as to why the same could not be produced at the time of the evidence of D.W.1. 8. Mr.D.Ravichander, learned counsel appearing on behalf of the respondents 1 to 3 would stoutly oppose the said petition saying that the same is belated and the documents should have been in the hands of the petitioner even at the time of filing of the written statement and the defendants 1 and 3 deliberately kept these documents away till such time as the evidence was coming to a closure. 9. Heard the submissions of either side and perused the records. 10. From a reading of the written statement, it is clear that the defendants even as earlier as in 2007 has mentioned about the sale in favour of the said Kamaraj and Rajendran and that the suit without impleading the purchasers was bad for non-joinder of necessary parties. By reopening the evidence and recalling D.W.1, they are only trying to substantiate the statement made by the 2nd defendant in the written statement with the documentary proof. The learned Subordinate Judge ought to have considered this and passed orders. The learned Judge has been swayed by the delay in denying the request of the defendants 1 and 3 for reopening and recalling the evidence. The order of the learned Subordinate Judge, Gingee suffers from infirmity and is therefore being set aside. 11. These Civil Revision Petitions are allowed. Considering the fact that these applications have been taken at the fag end of the trial when the 4th defendant was to enter the box, the revision petitioner shall be recalled and shall adduce the evidence within a period of ten (10) days from the date of receipt of a copy of this order. D.W.1 shall hand over the documents and mark those documents without any further time being granted to him and thereafter, the learned Judge will dispose of the suit within a period of two months. No costs. D.W.1 shall hand over the documents and mark those documents without any further time being granted to him and thereafter, the learned Judge will dispose of the suit within a period of two months. No costs. Consequently, connected Miscellaneous Petition is closed.