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2018 DIGILAW 3357 (MAD)

L. Gajalakshmi v. D. Sathish Kumar

2018-09-28

T.RAVINDRAN

body2018
JUDGMENT T. RAVINDRAN, J. 1. The Civil Revision Petitions are directed against the order passed by the Court below dated 17.04.2018 in I.A.Nos.4575 of 2018 & 4574 of 2018 in O.S.No.2070 of 2018 dismissing the above said applications preferred the petitioners/defendants. 2. I.A.Nos.4574 of 2018 & 4575 of 2018 have been laid by the petitioners/defendants, as could be seen from the materials placed on record, to reopen DW1 in the abovesaid suit to enable the petitioners/defendants to mark the documents for filing in the abovesaid suit and to recall DW1 in the abovesaid suit to enable the petitioners/defendants to mark the documents for filing in the abovesaid suit. 3. Materials placed on record further go to show that the respondent/plaintiff has laid the suit against the petitioners/defendants for recovery of money and the suit having been laid as a summary suit, it is found that after the issuance of summons and the petitioners/defendants entering appearance, they had sought the permission of the Court to defend the case in I.A.No.10321 of 2017 and it is seen that the abovesaid petition for leave to defend had been allowed inter alia with conditional order directing the petitioners/defendants to cooperate with the Court to dispose of the matter within three months from the date of framing of issues. Further, it could also be seen that the issues had been framed as early as on 10.11.2017 and it is also noted that prior to the same, the petitioners/defendants had filed the written statement on 20.10.2017 and as could be seen from the materials placed on record, the defendants had not filed any document along with the written statement in support of their defence version as contemplated under Order VIII Rule 1A of CPC and accordingly, based on the abovesaid position, it is found that the matter was proceeded further and on the side of the respondent/plaintiff, PW1 was examined and the petitioners/defendants, after taking several adjournments for the cross examination of PW1 from 23.11.2017 to 08.02.2018 and thereafter, concluded the cross examination and it is found that the plaintiff's side evidence was closed on 12.02.2018, thereafter, it is found that the matter had been listed for the defendants' side evidence on 14.02.2018 and thence from adjourned to 15.02.2018, 16.02.2018, 19.02.2018, 20.02.2018 and 27.02.2018 by the Court concerned and inasmuch as the defendants had prayed for time to file certain documents in respect of their case, it appears the evidence recording Court had sent back the matter to the regular Court and in the regular Court, the matter was called from 27.02.2018 and thereafter, the matter was listed for the evidence of DW1, the chief continuation on 28.02.2018, 05.03.2018 and adjourned to 09.03.2018 and as could be seen from the impugned order on 09.03.2018, there was no representation on the side of the defendants and as the witness was also not present in the Court, left with no other alternative, the Court below had closed the evidence of the defendants and posted the matter for arguments on 15.03.2018. It is further noted that on 15.03.2018, the plaintiff's side arguments had been heard by the Court below and the matter stood adjourned to 16.03.2018 for the defendants' side arguments. At that stage of the matter, it is found that the defendants had come forward with the abovesaid applications seeking to reopen the matter for the evidence of DW1 and recall him for the purpose of marking documents produced by them in support of their defence version. 4. At that stage of the matter, it is found that the defendants had come forward with the abovesaid applications seeking to reopen the matter for the evidence of DW1 and recall him for the purpose of marking documents produced by them in support of their defence version. 4. However, as rightly put forth by the respondent/plaintiff in the counter filed to the abovesaid applications, it is found that admittedly, the petitioners/defendants had not filed any document along with the written statement in support of their case as mandated under Order VIII Rule 1-A of CPC. Furthermore, it is seen that the petitioners had been granted ample opportunity by the Court below for adducing their evidence in support of their defence version and as abovenoted, sufficient indulgence has been shown by the Court below in providing opportunity to the defendants to adduce the evidence of their side and despite the same, the defendants had failed to appear on the adjournment date on 09.03.2018 and accordingly, as there was no representation on the side of the defendants, the Court had closed their evidence and proceeded with the matter further. In such view of the matter, the conduct of the defendants in thereafter preferring the abovesaid applications with the documents by putting forth the reason that as they had been advised and required to produce the said documents in support of their defence version and as they had noted the hearing date wrongly as 15.03.2018 in stead of 09.03.2018 and thereby, they were unaware of the proceeding of the Court on 09.03.2018 and accordingly, they should be provided an opportunity to tender evidence in support of their version along with the documents projected by them. 5. 5. The abovesaid applications preferred by the defendants had been stoutly resisted by the respondent/plaintiff contending that when the defendants had failed to place any document along with their written statement in support of their case and when the matter is adjourned for the arguments, after closing their evidence, the defendants without assigning any reason as to why they had not endeavoured to produce the said documents at the time of filing of their written statement and with reference to the same, when no reason at all has been given by the defendants and furthermore, when the documents sought to be projected are not shown to be not within the knowledge of the defendants at the time of the filing of the written statement, accordingly, contended that sans sufficient cause placed by the defendants with reference to their case for reopening the matter for enabling them to produce the documents through the evidence of DW1, the same requires no acceptance and accordingly, prayed for dismissal of the petitions. 6. As abovenoted, the defendants are fully aware that while disposing of their application for leave to defend, the Court had passed an order directing the parties concerned to conclude the disposal of the suit within a period of three months from the date of framing of the issues. In such view of the matter, when on certain conditions, the defendants had been granted leave to defend, accordingly, the defendants should have endeavoured in all aspects to cooperate with the Court and conclude the trial as early as possible, particularly, within the time stipulated by the Court as abovenoted. 7. However, as could be seen from the conduct of the defendants, it is seen that at the time of filing of their written statement, they had not placed any document along with the same in support of their case and accordingly, proceeded with the trail thereupon. 7. However, as could be seen from the conduct of the defendants, it is seen that at the time of filing of their written statement, they had not placed any document along with the same in support of their case and accordingly, proceeded with the trail thereupon. Such being the position, when thereafter as abovenoted, the matter had been adjourned to several dates for enabling the defendants to produce their evidence and the defendants had been taking time after time in placing the evidence in support of their case and also sought time for producing the documents and even thereafter, when they had been granted opportunity to place their evidence, inasmuch as they had failed to appear on 09.03.2018, it is seen that the Court below had rightly closed their evidence, considering the delay tactics adopted by the defendants in the prosecution of the matter. 8. In the light of the above position, when as per Order VIII Rule 1-A CPC, the defendants are required to produce the documents, which they rely upon and in their possession and power in support of their case along with the written statement and also the abovesaid Rule mandates that the defendants should deliver the original documents or the copy of the same along with their written statement and also the Rule mandates that if all the documents are not in their possession or power of the defendants, they are also required to state in whose possession or power they are available and in such view of the matter, when it is found that the defendants had filed the written statement without producing any document along with the same, accordingly, proceeded with the matter further, accordingly, it is found that the defendants had not chosen to rely upon any document with reference to their defence. In such view of the matter, when according to the defendants, thereafter when they require or felt that certain documents are essential for their defence version, if the said endeavour of the defendants is genuine and bonafide, while filing the applications with reference to the same, they should have come forward with the cause as to where the documents, which they now seek to rely upon, were available, whether they were in the custody of the defendants or elsewhere and also should give a cause as to why they had not endeavoured to produce the said documents at the time of filing of their written statement and as abovenoted, when they had not mentioned in the written statement as to in whose possesstion or custody, the abvoesaid documents now relied upon were available, in such view of the matter, when as per Order VIII Rule 1-A (3) CPC, the defendants, if they had failed to produce the documents, which they rely upon along with the written statement and thereafter, intend to rely upon certain documents, they cannot be allowed to produce the said documents at the hearing of the suit on their behalf without the leave of the Court and therefore, unless the Court permits, the defendants cannot be permitted to rely upon the new documents, which they seek to produce and for seeking the permission of the said Court with reference to the same, as rightly contended by the respondent/plaintiff in the counter, the defendants should have given the reasons as to what prevented them from filing the documents now they rely upon, while filing the written statement and as to whether in whose custody or power, the said documents were available at the time of the filing of the written statement or at least they should have averred that the documents now they seek to rely upon, had come to their knowledge only after the filing of the written statement from a particular source. However, when with reference to the same, there is no whisper at all in the petitions preferred by the defendants other than stating that they had wrongly noted the hearing date as 15.03.2018 instead of 09.03.2018 and in such view of the matter, when the defendants have not given any cause at all worth acceptance for entertaining the request to reopen the evidence of DW1 and permit them to mark the documents as prayed for, the Court below is wholly justified in rejecting their applications with reference to the same. 9. As rightly determined by the Court below, even in the petitions filed by the defendants above stated in I.A.No.4574 of 2018 & 4575 of 2018, the defendants are not clearly as to what for they had filed the abovesaid applications and accordingly, they are unable to give any clear reasonings as to why they had not chosen to file the documents now they rely upon along with their written statement and with reference to the same, no whisper at all has been made by the defendants in their applications. Such being the position, when the defendants are mandated to file all the documents in their power and possession at the time of filing of the written statement itself and on the other hand, the defendants having not done so and thereafter very belatedly having proceeded to produce certain documents in support of their case, at least, should have endeavoured to give a just cause with reference to the same for enabling the Court to accept their case, however, when no cause at all had been given by the defendants for the reception of the documents now they seek to rely upon and furthermore, when as above discussed, the defendants had been given ample opportunity to adduce their evidence on several adjournment dates and despite the same, the defendants having not cared to produce their evidence in the manner known to law and on the other hand, without any sufficient reason or cause, had come forward with the applications abovestated, as rightly determined by the Court below, the above applications preferred by the defendants are nothing but a ruse the delay the proceeding endlessly, so as to cause irreparable loss and hardship to the respondent. 10. 10. In so far as this matter is concerned, when there is already an order of the Court to conclude the trial within a time frame work, it is the bounden duty of one and all including the defendants to dispose of the suit at the earliest point of time. However, the conduct of the defendants would only go to expose that they are hell bent upon to delay the proceedings one way or the other and accordingly, had not chosen to present the applications by giving proper reasons and cause for reopening the matter and recalling DW1 and marking the documents through DW1 and in such view of the matter, I do not find any error or mistake in the impugned order of the Court below in dismissing the applications filed by the petitioners/defendants. If these type of applications are entertained by the Court below, there will be no end to the civil action and the parties would endeavour to file applications to applications with a view to cause the delay inordinately, so as to deprive the other party from reaping the fruits of the decree that may be passed in their favour. Resultantly, no valid reason is made out warranting interference with the impugned order of the Court below. Accordingly, the Civil Revision Petitions are dismissed. Consequently, connected miscellaneous petitions, if any, are closed.