Rama Gounder vs Sakthivel

Honourable Mr. Justice G. Rajasuria

Animadverting upon the orders dated 17.10.2011 passed by the learned District Munsif cum Judicial Magistrate, Uthankarai in I.A. No. 586 of

2011 in I.A. No. 93 of 1996; I.A. No. 587 of 2011 in I.A. No. 93 of 1996; I.A. No. 588 of 2011 in I.A. No. 94 of 1996 and I.A. No. 589 of

2011 in I.A. No. 94 of 1996 in O.S.No. 81 of 1996 respectively. I.A. No. 593 of 2008 in O.S.No. 155 of 2008, these civil revision petitions

have been focussed. Heard both sides.

A synoptic and succinct narration of the germane facts, absolutely necessary and relevant for the disposal of these civil revision petitions would

run thus:

The indubitable and indisputable facts would run thus:

The revision petitioner herein was Defendant No. 2 in the partition suit filed as against him by the plaintiffs therein and the matter was litigated; as

against which, the matter went upto High Court in Second Appeal and it was disposed of ordering partition. Subsequently, D1''s son

Sakthivel/respondent herein filed two applications, viz., I.A. No. 93 of 1996 and I.A. No. 94 of 1996, for getting himself impleaded in the

proceedings on the strength of a Will allegedly executed by the first plaintiff, Samathammal and in that petition enquiry was conducted and P.Ws.1

and 2 were examined. However, they were not cross-examined by the revision petitioner herein. Hence, he subsequently filed four applications for

getting the matter re-opened and re-calling the witnesses so as to enable him to cross examine them and also adduced evidence on his side.

The court passed the conditional order to the effect that on payment of cost of Rs. 250/- in respect of each of the petitions payable by the

revision petitioner herein to the respondent, the revision petitioner would get an opportunity of cross examining PW2 only, as otherwise, the

petitions filed by the revision petitioner would stand dismissed. The revision petitioner could not deposit the sums before the court below for the

reason that he was not well. Hence, the revision petitioner has chosen to file these revision petitions seeking further time to pay the amount and get

an opportunity of cross-examining PW2 and also to adduce evidence.

Whereas the learned counsel for the respondent would clarify by pointing out that PW1 was cross-examined by the revision petitioner herein

and only PW2 was not cross-examined deliberately by the revision petitioner and whereupon alone the court closed the side. The memo filed by

the revision petitioner for getting extended the time to deposit the aforesaid amount was returned and in such a case, this revision itself is not

maintainable.

The learned counsel for the revision petitioner would submit that no order was passed in the memo and this court being the revisional court

could very well give an opportunity to the revision petitioner to participate in the proceedings by passing suitable orders.

The point for consideration is as to whether the revision petitioner/D2 has to be given one more opportunity to participate in the proceedings by

cross-examining PW2 and also by adducing evidence, on payment of additional cost in view of the default committed by him in complying with the

lower court order dated 17.10.2011?

I recollect and call up the trite proposition of law that court procedures are hand-maids of justice and that it does not mean that those

procedures are contemplated for being violated and for not being adhered to. However, in appropriate cases, in the interest of justice, the court

should cut across technicalities to give opportunity to the party concerned.

Here, in this case, only a meagre sum of Rs. 250/- was awarded as cost in each of the petitions payable by the revision petitioner in favour of

the respondent herein; nevertheless that was not paid.

The learned counsel for the revision petitioner would explain and expound that the petitioner was unwell and bed-ridden and hence, he could not

contact his advocate to comply with the said order.

Be that as it may, taking into consideration the overall circumstances as set out supra, I am of the view that one more opportunity has to be

given to the revision petitioner to participate in the proceedings, however subject to payment of a sum of Rs. 500/- in each of the four petitions.

Accordingly, the revision petitioner is directed to pay a total cost of Rs. 2,000/- (Rupees two thousand only) to the respondent herein within a

period of fifteen days from this date. On such payment being made, the lower court shall do well to see that the applications are disposed of as

expeditiously as possible after giving an opportunity to the revision petitioner herein to cross-examine PW2 and also to adduce evidence on his

side.

On hearing the judgment, the learned counsel for the respondent would submit that by this order, the petitioner should not be given an

opportunity to cross-examine PW1 as according to him PW1 was already cross-examined.

I would like to clarify that this order is being passed so as to enable the revision petitioner herein only to cross-examine PW2 in the

proceedings now pending before the court below and also to adduce evidence on the revision petitioner''s side. With the above direction, all these

civil revision petitions are disposed of accordingly. No costs. Consequently, the connected miscellaneous petition is closed.