Geetha and Others vs S. Subramaniam

M. Venugopal, J.—The Petitioners/9 to 12 Defendants has filed the present Civil Revision Petition as against the Order dated 25.04.2012 in

I.A. No. 75 of 2012 in I.A. No. 48 of 2012 in O.S. No. 322 of 2004 passed by the Learned Additional District Judge, Namakkal. The Learned

Additional District Judge, Namakkal, while passing orders in I.A. No. 75 of 2012 in I.A. No. 48 of 2012 in O.S. No. 322 of 2004, has clear

terms observed that ""... The reason that the Counsel was out of station is not at all a ground to allow this petition. Further, in I.A. No. 48 of 2012

also it was stated that the Counsel was held up in Tiruchengode and the Counsel could not attend the Court when this case was called. Further as

many as four petitioners are parties and none of them attend on those hearings. Further in the affidavit, it is simply stated that the Counsel was out

of station and no acceptable reason is stated. Hence, no merit in this petition and is to be dismissed"" and resultantly, dismissed the petition without

costs.

The Learned Counsel for the Petitioners/9 to 12 Defendants submits that the main Suit in O.S. No. 322 of 2004 on the file of the trial Court is

one of Partition and at the time of trial, the Petitioners/9 to 12 Defendants have not been in a position to cross examine P.W.2 and consequently,

the cross examination of P.W.2 has been closed. As such, the Petitioners/9 to 12 Defendants have been perforced to file I.A. No. 48 of 2012 for

recalling witness P.W.2. However, the said I.A. No. 48 of 2012 has been dismissed for default on 03.04.2012 because of non appearance of the

Counsel on the side of the Petitioners/9 to 12 Defendants.

The main argument advanced on behalf of the Petitioners/9 to 12 Defendants is that a Court of Law is not supposed to harp on technicalities.

Per contra, it is to deliver substantial Justice to the parties, overriding technicalities or hyper technicalities.

Per contra, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the Petitioners/9 to 12 Defendants in I.A. No. 75 of

2012 in O.S. No. 322 of 2004 have not assigned proper reasons in regard to the non-appearance of their Counsel on 03.04.2012. In short, the

reasons assigned in the affidavit in I.A. No. 48 of 2012 have been repeated in I.A. No. 75 of 2012. As a matter of fact, the Respondent/Plaintiff

has taken a plea that only with a view to drag on the conduct of the trial of the main case, the Petitioners/9 to 12 Defendants along with the other

Defendants 1 to 4 have filed I.A. No. 75 of 2012 contrary to Law.

According to the Learned Counsel for the Petitioners/9 to 12 Defendants, the Counsel on record for the Revision Petitioners/9 to 12

Defendants comes from Tiruchengode to Namakkal to attend the hearings of the main suit in O.S. No. 322 of 2004, where the main case is

pending on the file of the Learned Additional District Judge, Namakkal and because of the absence of their Counsel, I.A. No. 48 of 2012 has

been dismissed by the trial Court on 03.04.2012 and in fact, for the mistake or non appearance of the Counsel, the Petitioners/9 to 12 Defendants

cannot be penalised. It is true that I.A. No. 48 of 2012 has been dismissed on 03.04.2012 and the Counsel for the Petitioners/9 to 12 Defendants

has not appeared before the Court. The trial Court has thought it fit to dismiss the said I.A. No. 48 of 2012 on 03.04.2012 and also proceeded to

make an observation while passing the order dated 25.04.2012 in I.A. No. 75 of 2012 in O.S. No. 322 of 2004 to the effect that ''the reason that

the Counsel was out of station is not at all a ground to allow this petition''.

A Court of Law while dealing with the application to restore the earlier application dismissed for default or the same being dismissed owing to

non appearance for the Counsel for the particular party is to adopt a lenient and liberal view. Also, a Court of Law is to adopt a pragmatic,

common sense, purposeful, practical and justice oriented approach in a matter relating to an Interlocutory Application to restore earlier application

dismissed for default on account of one reason or other. The trial Court as per Or. 18 R. 17 of CPC to exercise its judicial discretion in allowing

the application for recalling of a particular witness. While exercising the said discretion, a Court of Law is to be circumspect and adopted a

cautious approach. An important thing one has to bear in mind that an application for recalling witness under Or. 18 R. 17 cannot be allowed by a

Court of Law ipso facto based on any false statement or omission to put some vital questions. Order 18 Rule 17 of C.P.C. is an enabling provision

for the convenience of the Court. However, the said provision does not permit a litigant to reexamine any witness to fill up a lacuna in a given case.

A word ''may'' employed in Or. 18 R. 17 of C.P.C. clearly postulates that the discretion has been given to the trial Court. Further, the word ''may''

does not mean ''shall'' and the Court was not bound to recall witnesses whom the Petitioners wanted to recall.

As far as the present case is concerned, the endeavor of the trial Court and the considered view of this Court should be that all relevant and best

materials are to be brought on record, which in turn would effectively, efficaciously, conclusively and finally decide the dispute between the parties

in a complete and comprehensive manner. Only rider under Or. 18 R. 17 of C.P.C. can be that a witness cannot be recalled when the main suit

has been heard and reserved for Judgment.

It is to be noted that for marking of a document, no elaborate order is necessary as per decision A. Stephan, Erik Stephan and Syril Stephan

Vs. Ponnammal, R. Mohankumar and R. Suryanarayanan, .

Also, an application for recalling a witness lies under Order 18 Rule 17 of CPC and not under Order 16 Rule 3 of Code of Civil Procedure, as

opined by this Court. Furthermore, it is beyond the competency of a Court of Law to virtually oblige a party to examine any particular witness as

per decision of the Honourable Supreme Court The Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, . On a

careful consideration of the respective contentions and taking note of the fact that the Petitioners/9 to 12 Defendants'' Counsel has not appeared

before the trial Court on 03.04.2012 when I.A. No. 48 of 2012 has come to be dismissed. Later, I.A. No. 75 of 2012 has been filed before the

trial Court and the trial Court has come to a resultant conclusion that the non appearance of Counsel on 03.04.2012 is not a ground at all etc., At

this juncture, this Court is of the considered view that the trial Court has not exercised its judicial discretion in a lenient and liberal manner. As

stated already, it has adopted a hyper technical approach in dismissing I.A. No. 75 of 2012 on its file, by adopting a shortcut method of dismissing

the matter, which in the considered opinion of this Court, is not a valid and correct one. Therefore, to prevent an aberration of Justice and to

promote substantial cause of Justice, this Court exercising its revisional jurisdiction interferes with the Orders passed by the trial Court in dismissing

I.A. No. 75 of 2012, dated 25.04.2012 and sets aside the same in the interest of Justice. Consequently, this Court allows the Civil Revision

Petition, by directing the Petitioners/9 to 12 Defendants to pay a sum of Rs. 1,500/- (Rupees one thousand five hundred only) only towards costs

to the Respondent/Plaintiff''s Counsel (in Revision) before this Court, directly, on or before 14.03.2013, failing which, it is made clear that the

Revision Petition shall stand dismissed, automatically, without any further reference to this Court. The trial Court is directed to restore I.A. No. 48

of 2012 to its file, within a period of two weeks from the date of receipt of a copy of this order (in view of the fact that this Court has allowed the

present Civil Revision Petition). After restoring I.A. No. 48 of 2012 to its file, the trial Court is directed to deal with the said I.A. No. 48 of 2012

on merits and to dispose of the same at an early date. Further, this Court, taking note of the fact that the main suit O.S. No. 322 of 2004 on the file

of the trial Court, is in part heard stage and since the suit is one for Partition between the parties, this Court, as an equitable remedy, directs the

Learned Additional District Judge, Namakkal, to dispose of the main suit O.S. No. 322 of 2004 pending on his file, within a period of five months

from the date of receipt of a copy of this order and to report compliance to this Court without fail. Consequently, the connected M.P. No. 1 of

2012 is closed.