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2021 DIGILAW 2124 (MAD)

Rajagopal v. Palanivel

2021-08-16

K.MURALI SHANKAR

body2021
ORDER : Prayer: Civil Revisions Petitions have been filed under Section 227 of Constitution of India, to set aside the fair and decretal order dated 15.04.2021 made in I.A. Nos. 1, 2 and 3 of 2021 in O.S. No. 75 of 2011 on the file of the District Munsif Court, Kulithalai. 1. These Civil Revisions are directed against the orders passed in I.A. Nos. 1, 2 and 3 of 2021 in O.S. No. 75 of 2011, dated 15.04.2021 on the file of the District Munsif Court, Kulithalai, in dismissing the petitions filed to reopen the case, for recalling PW-1 and for reception of additional evidence, respectively. 2. The revision petitioner is the plaintiff and he filed the suit in O.S. No. 75 of 2011 on the file of the District Munsif Court, Kulithalai, claiming the reliefs to declare that the suit properties are the absolute properties of the plaintiff and for consequential permanent injunction restraining the defendants and their men from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties. After completion of trial, when the case was posted for arguments, the plaintiff has filed three applications, one in I.A. No. 1 of 2021 under Section 151 CPC, for reopening the case, second in I.A. No. 2 of 2021 under Order 18 Rule 17 CPC for recalling PW-1 and the third one in I.A. No. 3 of 2021 under 7 Rule 14 CPC for reception of additional documents. The learned District Munsif, after enquiry, has passed the impugned orders separately on 15.04.2021, dismissing all the three petitions. Aggrieved by the said orders of dismissal, the plaintiff has come forward with the present revisions. 3. The main contention of the revision petitioner is that several suits relating to the suit property were disposed of earlier, that the petitioner has now only traced out the plaint, written statement, judgment and decree and other records, that the said documents were not produced earlier and the same are very much necessary to prove the case of the plaintiff and that the failure of the plaintiff to file the documents earlier, is not wanton and is liable to be condoned and that the said documents are to be received as additional evidence and PW-1 is to be recalled, for exhibiting those documents and for that purpose, the case has to be reopened. 4. 4. The 8th respondent/8th defendant has filed a counter statement, which was adopted by the respondents 1 to 3 opposing the above applications and further stated that the case was posted for arguments more than 5 hearings, that the petitioner without showing any good cause or sufficient reasons and without any pleadings in the plaint, without any reservations in the plaint and without mentioning the above said Court proceedings in the plaint, has filed the above petitions for reception of additional documents with male fide intention to protract the proceedings, that the suit is pending from 2011 onwards and the plaintiff has come forward with the above documents after 10 years and that therefore, the trial Court has rightly dismissed the above petitions. 5. The learned counsel for the revision petitioner has relied on a decision of Honourable Supreme in Vadiraj Nagappan vs. Sharachandra Prabhakar, 2009 (4) SCC 410 and the relevant passages shown by the learned counsel for the revision petitioner are reproduced hereunder: “24. Having heard learned counsel for the respective parties, we are unable to agree with Mr. Narasimha that both the Single Judge and the Division Bench of the High Court had erred in rejecting the appellants' application under Order 18 Rule 17 CPC since, according to Mr. Narasimha, no prejudice would be caused to the respondent as he would be given a chance of cross-examination after re-examination in chief by the plaintiff. 25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.” 6. But at the same time, the learned counsel for the respondents have also relied on the very same decision of the Honourable Supreme Court and referred the following passages: “28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and reexamination would not cause any prejudice to the parties. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and reexamination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. 29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.” 7. The learned counsel for the revision petitioner has also relied on the decision of the Honourable Supreme Court in K.K. Velusamy vs. N. Palanisamy, 2011 (11) SCC 275 : “In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination. If there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extra-ordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognized with reference to exercise of power under section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments.” 8. The learned counsel for the respondents have also relied on the same decision and referred the following passages: “This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any issue or doubt it may have in regard to the evidence led by the parties by recalling any witness so that the Court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions. However, this power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions. However, this power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded.” 9. The learned counsel for the respondents have also relied on the decision of the Division Bench of this Court in Punjab and Sind Bank vs. Dewa Properties Limited, 2019 (3) CTC 737 and the relevant passages are extracted hereunder: “27. We find that the application to introduce additional evidence was filed by the appellant belatedly in the year 2018 and therefore, the appellant was not diligent. The suit was filed in the year 2004. The trial was completed in the year 2012 and evidence was closed. The appellant waited for another 6 years to lapse. Thereafter, the appellant filed the above application to mark additional documents. 28. The learned Single Judge in our view has rightly refused to exercise the discretion in favour of the appellant. As a plaintiff, the appellant ought to have laid the suit based on the documents that were in its possession or at its head office. In case, it did not have such document, the appellant should have reserved the right under Order VII Rule 14 (2) of the CPC. On the other hand, the appellant has stated nil under the list of document in the plaint under the aforesaid provision. 29. Further, Order VII Rule 14 of CPC indicates that the plaintiff can introduce documents which were not in possession at the time of filing this suit only with leave of the Court. In this case, this is not the case. The appellant cannot mark documents which were in its possession but were not filed along with the plaint. Marking of additional documents which were neither specified in the plaint nor in contemplation at the time of filing of the suit but in possession of the plaintiff is not permissible except under Order VII Rule 14(4) during cross examination of the defendant.” 10. Marking of additional documents which were neither specified in the plaint nor in contemplation at the time of filing of the suit but in possession of the plaintiff is not permissible except under Order VII Rule 14(4) during cross examination of the defendant.” 10. Bearing the above legal position in mind, let us consider the case on hand. In the present case, admittedly, the suit was filed in the year 2011 and already 10 years has lapsed. It is not in dispute that the trial of the suit was already over and is pending for arguments. The plaintiff in I.A. No. 3 of 2021 has sought to condone the delay in producing the certified copies of the judgment and decree passed in O.S. No. 194 of 2001, dated 28.11.2003, copies of the plaint and written statement filed in O.S. No. 60 of 2000 on the file of the Sub Court, Kulithalai, the copies of Suit Register Extract in connection with O.S. No. 60 of 2000 and the copy of the decree in O.S. No. 60 of 2000, dated 05.08.2003, the registration copy of the sale deed dated 19.12.1957 standing in favour of the plaintiff's father and Aathar card of the third defendant. 11. First of all, admittedly, the plaintiff has not averred anything as to how the suits in O.S. No. 194 of 2001 and O.S. No. 60 of 2000 are related to the present suit. Moreover, the plaintiff has nowhere whispered in the plaint about the earlier suits in O.S. No. 194 of 2001 and O.S. No. 60 of 2000. 12. It is settled law that any amount of pleadings without evidence or any amount of evidence without pleadings are of no use. Since the plaintiff has nowhere pleaded anything about the earlier suits in O.S. No. 194 of 2001 and O.S. No. 60 of 2000, the plaintiff is not entitled to adduce evidence with respect to the above said cases. 13. As already pointed out, it is the specific case of the plaintiff that the documents now sought to be produced were traced out in his house recently. Though the plaintiff has filed the suit in 2011, he has traced out the records relating to the suits in O.S. No. 194 of 2001 and O.S. No. 60 of 2000 only in the year 2021. Though the plaintiff has filed the suit in 2011, he has traced out the records relating to the suits in O.S. No. 194 of 2001 and O.S. No. 60 of 2000 only in the year 2021. Except the above tracing of the documents, the petitioner has not offered any other reason or explanation for not filing the documents earlier. 14. On considering the entire facts and circumstances, as rightly observed by the trial Court, this Court is of the view that the above petitions came to filed only to protract the proceedings. Hence, the decision of the trial Court in dismissing all the three applications cannot be found fault with. Considering the fact that the suit is pending from 2011 onwards, this Court is also of the view that necessary directions are to be issued for early disposal of the suit. 15. In the result, these Civil Revision Petitions are dismissed and the learned trial Judge is directed to dispose of the suit within a period of two months from the date of receipt of a copy of this order and both parties are directed to extend their fullest cooperation in disposing the suit within the time stipulated. No costs. Consequently, connected Miscellaneous Petition is closed.