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2019 DIGILAW 3323 (MAD)

Subramanian v. Potti Reddiar

2019-12-02

R.SUBRAMANIAN

body2019
ORDER : 1. This Civil Revision Petition has been filed challenging the order of the trial Court made in I.A. No. 517 of 2013, dated 5.10.2013. 2. The suit in O.S. No. 4 of 2009 was filed by the first respondent herein seeking declaration of title and for injunction regarding the right over the property. The suit was being resisted by the defendants contending that the subject-matter of the suit is already covered by the decision of the Court made in A.S. No. 9 of 2004. Pending the suit, the second defendant was examined as DW-1. He was also cross-examined on 10.7.2013. Defendants 2 and 3 filed I.A. No. 517 of 2011 on 14.8.2013 seeking to recall DW-1 for the purpose of marking certain documents. The said application was dismissed on the ground that the nature of the document has not been disclosed. The learned Trial Judge accepting the claim in the counter, dismissed the said application on the ground that the nature of the document sought to be marked was not disclosed. Aggrieved by the same, the defendants 2 and 3 have come up with this Civil Revision Petition. 3. I have heard Mr. R. Sundar, learned counsel for the Petitioner, Mr. K. Prabhakar, learned counsel for the first respondent and Mr. N. Shanmugaselvam, learned Additional Government Pleader appearing for the respondents 3 to 6. 4. Mr. R. Sundar, learned counsel for the Petitioner would contend that the trial Court erred in dismissing the Petition for recalling DW-1 in as much as the defendants evidence has not been closed and this will enable him to mark certain documents by examining some other persons connected with the suit. Sub-Rule (3) of Rule 1-A Order 8 of CPC mandates the party who has not produced the documents along with the written statement has to file an application seeking leave to produce documents at a later stage. According to the learned counsel only after this application for recalling the evidence of DW-1 is allowed, the Petitioners can come up with this application to seeking leave to mark the documents, wherein, he will have to necessarily disclose the nature of the documents. 5. Contending contra, Mr. K. Prabhakar, learned counsel for the first respondent submitted that even in this application, the Petitioner should have disclosed the reasons for non-production of the documents earlier and also the nature of documents. 6. 5. Contending contra, Mr. K. Prabhakar, learned counsel for the first respondent submitted that even in this application, the Petitioner should have disclosed the reasons for non-production of the documents earlier and also the nature of documents. 6. A perusal of the affidavit would show that the reason for non-production of the documents, has been set out and only the particulars of the documents are not set out. As rightly pointed by the learned counsel for the petitioner, it is open to the defendants to file an application to receive the documents under Sub-Rule (3) of Rule 1-A Order 8 of C.P.C. seeking leave of the Court to produce the documents. Therefore, according to him, application in I.A. No. 517 of 2013 was only a formal application seeking to recall the evidence of DW-1. 7. I have carefully considered the rival submissions made on either side and perused the materials placed before me. 8. I find that the learned counsel for the Petitioner is justified in contending that it is open to him to mark the documents through some other witness by filing an application under Order 8 Sub-Rule (3) of Rule 1-A of C.P.C. When such course was open to the Petitioner, the trial Court ought not to have dismissed the application on the ground that the application does not disclose the nature of the documents. Even in the written statements plea has been taken claiming that the subject matter of the suit has been conclusively decided in A.S. No. 9 of 2004. It is now stated that the documents sought to be marked are the pleadings in the earlier suit. Therefore I am of the view that the defendants deserve a chance to let in further evidence to establish their case. 9. In view of the above, the Civil Revision petition is allowed and the order dated 5.10.2013 made in I.A. No. 517 of 2013 in O.S. No. 4 of 2009 is set aside. I.A. No. 517 of 2013 stands allowed and DW-1 is recalled. It is open to the Petitioner to file an application as contemplated under Sub-Rule (3) of Rule 1-A of Order 8 of C.P.C. seeking to condone the delay for in production of the documents. Upon such application, being filed, it is for the trial Court to deal with the same in accordance with law. No costs. Consequently, connected Miscellaneous Petition is closed.