S. Kaliyaperumal vs V. Sathyakeerthi

The revision petitioner is the 13th defendant in O.S.No.3 of 2010 on the file of learned II Additional District & Sessions Judge, Thanjavur and in the suit, the plaintiff sought for declaration among various other reliefs. During pendency of the suit, the petitioner/13th defendant filed an application in I.A.No.39 of 2018 in O.S.No.3 of 2010, seeking to reopen the case in O.S.No.3 of 2010 for the purpose of submitting petitions, proof affidavit, evidence and for cross examination of plaintiff upon the petitioner's proof affidavit evidence and the said application was dismissed by the Trial Court, stating that the reopening of the case will only be an abuse of the process of Court and undue prejudice would be caused to other side. Aggrieved by the said order, the petitioner is before this Court.

It is the case of the revision petitioner that on 16.11.2016, one Manoharan / D15 was set exparte, as he was not available for cross examination by the plaintiff, but the revision petitioner, under the wrong notion that he was also set exparte, instructed his counsel accordingly to file an application to challenge the order of setting him exparte. It is the further case of the revision petitioner that when his counsel filed an application in I.A.No.1 of 2018 for setting aside the order, the Court, while dismissing the application, observed that no order setting him exparte was passed against him and therefore, the petition is not maintainable.

The revision petitioner states that subsequently, he has filed an application in I.A.No.39 of 2018 in O.S.No.3 of 2010 for reopening the case for achieving substantial justice, but the Court below has erroneously held that the petitioner has been filing a volley of petitions one after another with a sole intention of protracting the case. The revision petitioner further states that the balance of convenience is in his favour and no prejudice will be caused to other side for reopening the case for the afore-stated purpose.

Learned counsel for the respondent has contended that the suit is pending for more than seven years and the revision petitioner has some how succeeded in dragging on the matter for all these years. When the matter was posted for judgment for the second time on 13.02.2017 after completion of arguments, the defendants started filing applications one by one, which was highly depreciated by the Trial Court itself. It is further contended that the averments stated in the affidavit are not sufficient for consideration of the present case for reopen. Hence, it is prayed that this petition is liable to be dismissed in limine.

Heard the learned counsel on either side and perused the material documents available on record.

From the perusal of the averments set out in the petition, it is seen that the petitioner, on account of his old age, has misunderstood the order dated 16.11.2016, which was the cause for initiation of an unwanted litigation in I.A.No.1 of 2018 and the actual contents in the order dated 16.11.2016, viz., D15 alone was set exparte, was known to him only at the fag end of the said proceedings. To err is human and the same cannot be taken as an advantage by the plaintiff.

It is an admitted fact that as on date, the petitioner, who is the 13th defendant was not examined in the suit in O.S.No.3 of 2010 and he also did not cross examine PW1 / plaintiff and without considering all these aspects, the Trial Court has simply dismissed the application. The refusal to reopen the case will definitely cause irreparable loss, hardship and mental agony to the petitioner and therefore, this Court is of the view that the order of the Trial Court dated 07.03.2018 has no legs to stand and it is liable to be set aside.

In the result,

a) this civil revision petition is allowed and the Fair and Decreetal order dated 07.03.2018 passed in I.A.No.39 of 2018 in O.S.No.3 of 2010 by the learned II Additional District & Sessions Judge, Thanjavur, is hereby set aside;

b) the learned II Additional District & Sessions Judge, Thanjavur is directed to reopen the case in O.S.No.3 of 2010 to enable the revision petitioner to submit petitions, proof affidavit, evidence and for cross examination of plaintiff upon the petitioner's proof affidavit evidence;

c) on such reopening of the case, the revision petitioner is permitted to examine himself as a witness in the suit and also cross examine PW1 / plaintiff and complete the said exercise within a period of one month from the date on which the case is reopened; and

d) the learned II Additional District & Sessions Judge, Thanjavur is further directed to dispose of the suit in O.S.No.3 of 2010 within a period of three months thereafter.

No costs. Consequently, connected miscellaneous petition is closed.