J. Samuel vs S. Mathisa Pandian and 2 others

The revision petition has been filed against the order of the learned Additional Sub-Judge, Tirunelveli, in I.A.No.195 of 1997 in O.S.No.64 of

1988 dated 30.9.97.

The petitioner/plaintiff filed a petition u/s 151 of the CPC to reopen the trial in the suit for letting in additional evidence. The petitioner is said to

have purchased the property from the 1st respondent on 30.10.86 under the sale deed Ex.A5. Now the petitioner came to know that the 1st

respondent has no title in Survey No. 101/6 in an extent of 0.63 cents. The petitioner already filed I.A.No.110 of 1997 and it was dismissed on

24.6.97. The Deputy Tahsildar, Sivagiri, has given a certificate to the effect that the 1st respondent had no title in the aforesaid survey number and

the petitioner sought an opportunity of proving the same by letting in additional evidence since the evidence was already closed and the case was

posted for arguments.

The respondents resisted the application and contended that the 1st respondent had title to an extent of 0.63 cents in S.No.101/6. The trial in

the suit was already endorsed commenced on 8.1.96 and the petitioner had already twice before the trial court that he had no more oral evidence

and the case was posted for arguments on 14.2.97. On that date, the petitioner filed I.A.No.92 of 1997 to re-open but not pressed the same on

1.4.97. Again on the same date, the petitioner filed I.A. No.110 of 1997 for re-opening the case and to examine a witness and to produce the

document and after hearing both sides, the trial court dismissed the application on 26.6.97. The petitioner has not chosen to file any revision. But,

later, filed another application for re-opening the case. The application filed by the petitioner was not bona fide and the case is pending for the last

ten years. The application filed by the petitioner was also barred by res judicata and the only intention of the petitioner is to drag on the

proceedings.

The court below after hearing both sides, dismissed I.A.195 of 1997 and aggrieved against this, the petitioner has come forward with the

present revision.

The learned counsel for the petitioner stated that although the application was filed u/s 151 of the Code of Civil Procedure, the court has got

power to reopen the same at any stage of the proceedings in the interest of justice. The petitioner was a college student when the suit was instituted

in the year 1988 and only in 1997 he came to know that the 1st respondent had no title to the property conveyed by him and he obtained the

certificate from the Deputy Tahsildar, Sivagiri. No doubt, there was delay in the disposal of the suit. But since a new document has been secured, it

is just and necessary to re-open the case and prove the same.

Learned counsel for the respondents resisted the application contending that the trial commenced more than 1 1/2 years back and the only aim

of the petitioner is to protract the litigation. The earlier application filed by the petitioner No. I.A. 110 of 1997 was dismissed and he has not

chosen to file any revision. It is further stated that the present application filed by the petitioner is not maintainable under law since no revision

would lie as the order was not passed u/s 151 of the Code of Civil Procedure. The application lacks in bona fide and it is liable to be dismissed.

It is admitted that the petitioner/plaintiff filed the suit for declaration that the sale deeds dated 3.11.86 and 6.11.86 in favour of respondents 1

and 2 in the scheduled properties are void and inoperative/and also claimed the relief of permanent injunction. It is admitted that the trial in the suit

commenced as early as 8.1.96 and the petitioner had already made an endorsement as ''no further oral evidence. The present application was filed

u/s 151, C.P.C. and it was dismissed. It has been held in A.T.K.P.L.M. Alamelu Ammal v. Rama lyer and another AIR 1922 Mad. 446 that the

fact that the petition in a case is headed as u/s 151, C.P.C. does not debar the Court from proceeding with it under any other provision, which it

may find actually applicable.

Learned counsel for the petitioner also brought to the notice of the court Order 18, Rule 2(4) and also Order 18, Rule 17A of the Code of Civil

Procedure, Order 18, Rule 2(4) reads as follows:

Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at

any stage"".

Order 18, Rule 17A reads as follows:

Where a party satisfies the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by

him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as

may appear to it to be just"".

The aforesaid provisions under Order 18, C.P.C. would clearly empower the Court and also enable a party to examine any witness at any

stage. Admittedly, in the present case although the evidence was closed on both sides and the case was posted for arguments, the petitioner

thought it fit to produce a certificate given by the Deputy Tahsildar, Sivagiri, in order to establish that his vendor had no title to a particular survey

number. The truth and validity and the binding nature can be looked into only at the time of the trial of the case and after letting in evidence. The

only question that has to be considered is whether the petitioner has acted bona fide and whether an opportunity can be given to the petitioner to

let in evidence relating to this document in the interest of justice.

Learned counsel for the petitioner also relied on T.M. Natarajan v. Subbaraya Mudaliar and another1989 (I) L.W. 298 wherein it is stated as

follows:-

By Central Act 104 of 1976, 0.18, R.2(4) and 17-!, C.P.C. having been inducted, a ""now dimension has set in, for the hearing of the suit and for

examination of witnesses. O.18, R.2(4), C.P.C. being a non-obstinate provision, if valid, apposite and relevant reasons are given, then any party to

a proceeding could examine any witness at any stage of the hearing of the suit in respect of any evidence which was not known or could not be

produced despite due diligence; and if sufficient reasons are given, then such evidence could be adduced at the later stage, on such terms as may

appear to court to be just. These enabling provisions had been made in order to avoid additional evidence to be adduced at the appellate stage,

and to take away the figour hitherto obtaining in shutting out evidence which would not be produced on time, and which would be very relevant for

proper determination of the dispute between the parties"".

Learned counsel for the petitioner also relied on Adalat Choudhary Vs. Satan Choudhary and Others, wherein it is observed that where the

court refused to take a document in evidence only on the ground that the plaintiff''s case was closed, the order was liable to be set aside as the

close of the plaintiff''s case was not a legal bar for the court to refuse to take the document into evidence.

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.

The respondents did not disclose that an opportunity was already given to the petitioner to reopen the case and he has failed to make use of

the same and this being so, I am of the view that it is just and necessary that an opportunity should be given to the petitioner after reopening the

case to mark the document said to have been issued by the Deputy Tahsildar, Sivagiri, in accordance with law. It is also necessary to state that for

the application filed by the petitioner, the 1st respondent filed a counter enclosing three documents in support of his contentions. Under the

circumstance, if the case is reopened and the petitioner is given an opportunity to let in evidence, it is open to the respondents also to let in further

evidence to rebut the same and sufficient safeguard can be provided by fixing the time schedule to the lower court to dispose the suit and prevent

the petitioner/plaintiff or any other party from protracting the litigation. Although wrong provision of law is quoted, yet by taking in to consideration

of Order 18, Rule 2(4) and Order 18, Rule 17A of the Code of Civil Procedure, I hold that the revision filed by the petitioner has to be allowed

and ah opportunity has to be given to both sides to let in evidence on certain terms and conditions.

In the result, the revision is allowed and the order passed by the court below in I.A.No.195 of 1997 dated 30.9.97 is set aside and the court

below is directed to give opportunity to the petitioner to let in further evidence and similarly the respondents are also entitled to let in further

evidence. Both the parties are directed to let in further evidence, if any, as expeditiously as possible and the court below is directed to dispose the

suit within a period of one month from the date of receipt of a copy of this order and the compliance report also should be sent to this court. There

shall be no order as to costs. Consequently, C.M.P.No. 18025 of 1997 is dismissed.