N. Sadasivam vs Samiyathal

R. Mala, J.—This Civil Revision Petition has been filed against the order dated 21.02.2014 made in I.A. No. 29 of 2014 in O.S. No. 67 of 2009 on the file of the learned Subordinate Judge at Perundurai.

The respondent herein filed a suit in O.S. No. 67 of 2009 for a decree for cancellation of the preliminary decree passed in O.S. No. 168 of 1995 on the file of the Subordinate Judge, Erode as invalid, void in law and one obtained by fraud and collusion and not binding on the plaintiff and for other reliefs. Admittedly, the revision petitioner, who is the first defendant in the suit, filed his written statement along with other defendants. After the settlement of issues, both side''s evidences were closed and when the matter was posted for arguments, the first defendant/revision petitioner filed an application for reopen and recall the evidence of P.W.1 for further cross examination, since some important questions were omitted to be asked at the time of cross-examination of P.W.1. The trial Court, after hearing the other side, has dismissed the application, against which, the present revision petition has been preferred.

Challenging the above said order, the learned counsel appearing for the revision petitioner submitted that the respondent herein is one of the parties to the partition suit, wherein, a preliminary decree was passed. The suit is of the year 1995. Thereafter, the respondent herein filed O.S. No. 67 of 2009 for cancellation of the preliminary decree. He further submitted that in the suit, both sides'' evidences were closed and the matter was posted for argument and at the time of preparing the arguments, he came to know that he has to put some vital questions to put forth his defence, so, he was forced to file the application to reopen and recall the evidence of P.W.1. He further submitted that the defendant /revision petitioner is entitled to file the application to recall and reopen the evidence of P.W.1 since he has to put some vital questions. But, the trial Court has dismissed the application. Hence, he prayed for setting aside the order passed by the trial Court. To substantiate his arguments, he relied upon the following decisions:

(i) J. Samuel Vs. S. Mathisa Pandian and 2 others,

(ii) Krishnaveni and Others Vs. Gopal Pandithar

Resisting the same, the learned counsel appearing for the respondent submitted that both sides'' evidences were concluded and when the matter was posted for arguments, the defendant/revision petitioner in the suit filed the application to re-call and re-open the evidence the evidence of P.W.1 with a view to drag on the proceedings and to fill up lacuna, so, he is not entitled to any relief. Hence, he prayed for dismissal of the revision petition. To substantiate his arguments, he relied upon the following decisions:

(i) Mr. P.K. Madeswaran Vs. Mr. T.S. Sivakumar

(ii) K.K. Velusamy Vs. N. Palanisamy,

I have considered the rival submissions made by both sides and perused the typed set of papers.

The admitted facts are that both the revision petitioner and the respondent herein are the parties to the previous suit in O.S. No. 168 of 1995 on the file of the Subordinate Court, Erode, wherein, a preliminary decree was passed, but, the respondent herein is one of the defendants in the suit filed O.S. No. 67 of 2009 for the following relief:

(i) For cancellation of the preliminary decree in O.S. No. 168 of 1995 on the file of Subordinate Judge, Erode as invalid, void in law and one obtained by fraud and collusion and not binding on the plaintiff;

(ii) For a declaration that the judgment and decree in O.S. No. 168 of 1995 on the file of the Sub Court, Erode is invalid and a collusive on secured by playing a fraud on court and do not affect, curtail or extinguish the plaintiff''s title or right to the suit property more fully set out in the schedules;

(iii) For a declaration that the plaintiff is the exclusive and absolute owner of the properties left by father Late Kandaswami gounder and for a consequential injunction restraining the defendants, their men, agents or persons claiming under or through them from interfering with the plaintiff''s right and possession of the same.

(iv) To direct the defendants to pay the plaintiff the cost of the suit.

The defendants in the present suit filed the written statement and both sides'' oral evidences were closed and when the case was posted for argument, the revision petitioner herein filed the application to re-open and re-call P.W.1 for further cross examination.

Perusal of the trial Court''s records show that the application to recall the witness of P.W.1 is not the first application. The revision petitioner/defendant had already filed the application to recall P.W.3, which was allowed by the trial Court and since the batta was not paid, the said application was subsequently dismissed, which was discussed in para-11 of the impugned order. Thereafter, the revision petitioner herein filed I.A. No. 29 of 2014 in O.S. No. 67 of 2009, after closing the evidence on either side, which shows his mala fide intention to drag on the proceedings.

At this juncture, it is appropriate, on the part of the Court, to consider the decisions relied upon by the learned counsel appearing on both sides.

In the decision of this Court, relied upon by the learned counsel appearing for the revision petitioner, reported in J. Samuel Vs. S. Mathisa Pandian and 2 others, , it was held that the petition is filed to re-open the case in the suit for letting additional evidence, an opportunity must be given to the party to adduce documentary evidence for effective adjudication of dispute between parties and in the interest of just with the conditions. It is appropriate to extract para 12 of the said judgment, which is as follows:

The aforesaid decisions would clearly establish that an opportunity has to be provided to a party if the evidence is necessary in the interest of justice and in order to effectively adjudicate the dispute between the parties. No doubt there is a delay on the part of the petitioner in securing the document, but the delay on the part of the party should not stand in the way of giving an opportunity to prove the case. The Court below dismissed the application mainly on the ground that the intention of the petitioner is only to delay the proceedings. In fact, the petitioner alone as the plaintiff filed the suit and by delaying the suit, he is not going to be benefited in any way. No doubt due to various reasons, the case filed in 1981 has not been disposed of although nine years have elapsed. There is no serious objection on the part of the respondents in allowing the application filed by the petitioner in the interest of justice with some conditions.

In the above citation, the petitioner filed the application seeking to produce some documentary evidences, which was rejected and aggrieved against the same, the revision petition was preferred, wherein, this Court held that an opportunity must be given on certain conditions. But, in the present case, as already stated in an earlier para, after completion of oral evidence on plaintiff''s side, the revision petitioner filed the application to recall P.W.3, which was allowed and since the batta was not paid, the petition was dismissed and at the time of argument, he filed the application to re-call and re-open the evidence of P.W.1 which shows his mala fide intention to fill up lacuna. Therefore, the above citation is not applicable to the facts of the present case.

In the decision of this Court relied upon by the learned counsel appearing for the revision petitioner reported in Krishnaveni and Others Vs. Gopal Pandithar , it was held that the petition to recall witness filed without delay was bona fide, an opportunity must be given. It is appropriate to extract para 5 of the said Judgment and the same is extracted hereunder:

It is therefore clear that even after commencement of trial, Application for amendment is maintainable; however, it is the responsibility of the party, who file such Application, to satisfy the Court that there is bona fide in his Application and the same is filed not to delay the trial. In the case on hand, it is specifically asserted that by mistake, the counsel has omitted to put some vital questions to D.W.1 which was accepted by the learned District Munsif and allowed the Petitions with costs of Rs. 100 considering the inconvenience caused to the other side/defendants. In view of the legal position as clarified in the second Salem Advocate Bar Association case by the Hon''ble Supreme Court (cited supra), and of the fact that the Court below has exercised its jurisdiction judicially, in the interest of justice, I am not inclined to interfere with the orders impugned. Consequently, both the Revision Petitions fail and the same are dismissed. No costs. Consequently, connected C.M.P. is closed.

In the above citation, the application was filed without any delay. But, in the present case, after closing the evidence on either side, the plaintiff filed the application to recall and reopen the witness, when the matter was posted for argument.

In the decision of this Court reported in Mr. P.K. Madeswaran Vs. Mr. T.S. Sivakumar , which is relied upon by the learned counsel appearing for the respondent, it was held that Petitioner filed an Application to recall P.W.1 and P.W.2 for cross-examination  Application filed at time of arguments and 5 months after cross-examination of P.W.1 and P.W.2- Order 18, Rule 17 cannot be invoked to fill up lacuna in evidence of witness which has already been recorded. Para 10 of the said Judgment is extracted hereunder:

It is not in dispute that the Applications to reopen and recall the witnesses came to be filed at the stage of arguments and five months after P.W.1 and P.W.2 were cross-examined. In the Affidavits filed by the Respondent, it has been stated that only at the time of arguments, he came to know that certain important questions have been omitted to be asked in the cross-examination of P.W.1 and P.W.2. Except the said reason, no other reason has been stated.

As per Order 18 Rule 17 of C.P.C., no person shall be permitted to fill up lacuna by way of re-opening and re-calling the witness.

In the decision of the Apex Court reported in K.K. Velusamy Vs. N. Palanisamy, , which is relied upon by the learned counsel appearing for the respondent, in para 11, it was held as follows:

The Code earlier had a specific provision in Order 18, Rule 17-A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the Court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence, if he satisfied the Court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 01.07.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence.

But, in the present case, nothing has been stated in the affidavit. In the affidavit of I.A. No. 29 of 2014 in O.S. No. 67 of 2009, the revision petitioner herein specifically stated that at the time of preparing the arguments, my counsel found that some important questions were omitted to be asked at the time of cross examination of P.W.1 Hence, the plaintiff side evidence has to be reopened for further cross examination of P.W.1.

As per the decision of the Apex Court, in spite of due diligence, the petitioner is unable to secure the document and omit to state, then only, he is entitled to re-call the witness. But, in the instant case, as already stated, the revision petitioner filed the application to re-call the witness of P.W.3, which was allowed and since the batta was not paid, it was subsequently dismissed. Thereafter, the revision petitioner filed another application to recall and re-open the evidence of P.W.1 with a view to fill up the lacuna, so, he is not entitled to any relief in this revision petition. So, the impugned order passed by the trial Court does not warrant any interference, hence, it is hereby confirmed.

Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.