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2019 DIGILAW 496 (MAD)

V. Kalyani v. Thayappasamy

2019-02-25

S.RAMATHILAGAM

body2019
JUDGMENT : 1. This Civil Revision Petition has been filed to set aside the order passed in I.A.No.432 of 2018 in O.S.No.65 of 2014 dated 07.01.2019 on the file of the Additional Sub Court, Tenkasi. 2. I.A.No.432 of 2018 has been preferred by the plaintiff in O.S.No.65 of 2014, who is the plaintiff in O.S.No.106 of 2014. The petitioner in I.A.No.432 of 2018 in O.S.No.65 of 2014 has contended that already there was an order passed by the learned Principal Sub Judge, Tenkasi, for joint trial and the case in O.S.No.106 of 2014 has been preferred by him. During the said examination, the plaintiff in O.S.No.65 of 2014, who is none other than the daughter of the second defendant, colluded together, created a document dated 09.05.2011 and proceeded the case. However, the said case is reserved for pronouncing judgment and as per the direction of the Special Court, both the cases have to be tried together and both the cases were pending in the same stage and also posted on the same day. 3. Since it is observed that considering the right of the both the plaintiffs in the two suits over the same property, the petitioner / plaintiff herein sought for cross examining the other plaintiff. At the same time, she being the plaintiff in O.S.No.65 of 2014 has to be cross-examined and hence, it is contended by the petitioner that he has to be permitted to cross-examine the P.W1 and the case has to be re-called for the said purpose. The first respondent, who is the plaintiff in O.S.No.106 of 2014 has contended that there is no collusion as stated by the petitioner and there is no cause of action for the suit filed by the petitioner herein. Hence, the first respondent / plaintiff need not be cross-examined by the petitioner herein and hence, the petitions to re-open the same and to re-call the first respondent / plaintiff are not necessary. The trial Court observed the relief sought by both the petitioner and the respondents and also the earlier direction given by the learned Special Judge, Tenkasi. 4. The suit in O.S.No.317 of 2014 was decided against the petitioner namely, Kalyani. Further, A.S.No.24 of 2016 is also pending before the said Court. The petition filed to re-call P.W1 and cross-examine by the petitioner never occurred. Hence, he sought for the dismissal of the said petition. 4. The suit in O.S.No.317 of 2014 was decided against the petitioner namely, Kalyani. Further, A.S.No.24 of 2016 is also pending before the said Court. The petition filed to re-call P.W1 and cross-examine by the petitioner never occurred. Hence, he sought for the dismissal of the said petition. The trial Court observed the contention raised by both the plaintiffs has given a finding that both the plaintiffs in both suits are claiming right over the same property based on the sale agreement executed on different dates and the same was also admitted by both the parties. It is also observed by the trial Court that there is an order passed by the First Appellate Court to try the case together in view of the interest that is being claimed by both the plaintiffs in the different suits on the same property, then, one suit, in which, the petitioner herein has not cross-examined the P.W1 in the said suit. Hence, considering the relief sought for by both the plaintiffs on the same property, an opportunity has to be given to the petitioner herein to cross-examine the another plaintiff. Hence, the trial Court accordingly allowed the same. Aggrieved against the said order, the petitioner herein, who is the plaintiff in O.S.No.65 of 2012 has preferred the petition stating that the petitioner herein is not a party in the said suit preferred by her since she is claiming the right over the defendant based on the sale agreement, in which, the petitioner is not a party and there is no necessity arisen for him to cross-examine the plaintiff in the said suit. 5. Heard the learned counsel for the petitioner and also perused the records. 6. It is seen that the plaintiffs in both the suits are father and daughter and the daughter claims right over the same property based on the sale agreement, which was executed on two different dates. Further, there is already an order of the first appellate Court for joint trial of the said cases and since the case in O.S.No.65 of 2014 is posted for arguments and at this stage definitely an opportunity has to be given to the petitioner to cross-examine the said plaintiff and by which, no way the petitioner will be aggrieved over the same. 7. 7. The only apprehension of the learned counsel for the petitioner is that the witnesses may be put to embarrassing position by way of cross-examination, which will definitely hurt the petitioner to the extent that it will definitely cause some mental agony to her. Apart from the position, the reasons that since the petitioner is not at all a party in the suit and as against the provision of the Code of Civil Procedure, the petition, which was allowed by the trial Court has to be set aside, cannot be a basis for preferring the present Civil Revision Petition. Considering the relationship of the parties and the right claimed by the both the parties on the same property, no prejudice will be caused to the petitioner by way of giving an opportunity to the petitioner to cross-examine P.W1 and further, the trial Court will take care that no witness will be harassed by way of putting unnecessary questions, which will affect the mental status or the dignity of the person. 8. The learned counsel for the petitioner further contended that if necessary the petitioner can be subjected to cross-examine by the respondents. Since it is the contention raised by the petitioner that the petitioner is not residing in Tenkasi and she needs a week time to appear before the trial Court for cross-examining. 9. In view of the inconvenience i.e., represented by the learned counsel for the petitioner, the petitioner is directed to appear before the trial Court on the hearing date without fail for the purpose of cross-examination. 10. This Civil Revision Petition is dismissed accordingly. No costs. Consequently, the connected miscellaneous petition is closed.