M. Kayethey Ajam vs Ananthi @ Ameena Bivi and Others

V. Kanagaraj, J.—Both the Civil Revision Petitions are directed against the fair and decretal orders both dated 3.1.2003 respectively made

in I.A.Nos. 103 and 104 of 2002 in A.S.No. 99 of 2000 by the Court of Additional District Fast Track Judge, Ramanathapuram.

On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be taken that the petitioner herein has

filed the suit in O.S.No. 405 of 1993 before the Court of Principal District Munsif, Ramanathapuram, against the respondents herein for

declaration and injunction declaring that the first respondent is not his wife and respondents 2 to 5 are not his children and restraining the

respondents from claiming any right in his property. The Trial Court, after full trial, has partly allowed the suit declaring that the first respondent is

not the wife of the petitioner and respondents 2 and 3 are not their children but has held that the respondents 4 and 5 are the children of the

petitioner.

It further comes to be known that aggrieved against the said finding of the Trial Court, the respondents herein have preferred an appeal in

A.S.No. 99 of 2000 before the Court of Additional District Fast Tract Judge, Ramanathapuram and when both sides, arguments were completed

and the matter was posted for judgment on 23.10.2002, the respondents herein have filed two petitions in I.A.Nos. 103 and 104 of 2002

respectively praying to re-open the appeal and examine the additional witnesses in the appeal and since both the said petitions were allowed by the

lower appellate Court, the respondent therein has come forward to file both the above Civil Revision Petitions on certain grounds as brought forth

in the grounds of revisions.

During arguments, the learned counsel appearing on behalf of the petitioner, besides tracing the facts and circumstances embodied in the two

Interlocuroty Applications filed before the lower Court and the impact of the same, would also cite a judgment of the Honourable Apex Court

delivered in V. Rajeshwari v. T.C. Saravanabava, 2004 (2) L.W. 373 wherein it has been held:

The rule of res judicata does not strike at the root of the jurisdiction of the Court trying the subsequent suit. It is a rule of estoppel by judgment

based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.

The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the

foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in

issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal.

Citing the above judgment, the learned counsel for the petitioner would pray to allow the above Civil Revision Petitions.

On the contrary, on the part of the respondents, the leaned counsel besides sailing along with the orders passed by the Court below, would also

cite a judgment of the Honourable Apex Court delivered in The A.P. State Wakf Board Hyderabad Vs. All India Shia Conference (Branch) A.P.

and Others, wherein it has been held:

Inasmuch as such a declaration cannot be granted on the basis of the evidence led, the plaintiff has to adduce satisfactory evidence in relation to

each of the institutions concerned"".

As regards the procedure to be followed in such a situation, particularly in the light of the fact that the suit had been filed in the year 1963, it would

be proper that instead of dismissing the suit, the parties should be given an opportunity to produce evidence so as to enable the Court to render a

satisfactory judgment on the issue as to whether these institutions are Shia Wakfs or Sunni Wakfs"".

It is settled law that under Order 41, Rule 27(1)(b), CPC, whenever the Court finds difficulty in deciding an issue, it can direct additional evidence

to be adduced, treating the need for evidence as ""a requirement of the Court"" for pronouncing a satisfactory judgment. It would be ""other

substantial cause"" under Order 41, Rule 27(1)(b).

Citing the above judgment, the learned counsel for the respondents would pray to dismiss the above civil revision petitions.

In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, it comes to

be seen that I.A.No. 103 of 2002 concerned with C.R.P.No. 225 of 2003 has been filed before the Court below u/s 151, C.P.C. praying to

reopen the appeal in A.S.No. 99 of 2000 on the file of the Court of Additional District Fast Track Judge, Ramanathapuram and the other I.A.No.

104 of 2002 concerned with C.R.P.No. 226 of 2003 has been filed under the same provision of law i.e., Section 151, C.P.C. praying to permit

the petitioners/appellants to examine additional witnesses since they are vital to prove the case of the petitioners on averments that the allegation of

the respondent/plaintiff that the marriage in between the first appellant/first defendant was solemnized with one Sethupandi and the same was ended

in divorce is false, but on the contrary, the first appellant was given in marriage to one Loganathan @ Arumugam and in order to prove these facts,

at the time of trial before the trial Court, no independent witness was available but now since being available and to prove the vital factors relating

to these two facts pleaded, the examination of the additional witnesses is quite necessary.

The lower appellate Court, in spite of the stiff opposition from the revision petitioner herein, having felt the necessity to examine those witnesses

for the purpose mentioned in the petitions since being vital for arriving at a valid conclusion and following the judgment of the Apex Court AIR

2000 (2) CCC 41 would ultimately allow both the applications aggrieved against which the revision petitioner/plaintiff has come forward to file

both the above Civil Revision Petitions.

Though both these Interlocutory Applications have been filed u/s 151, C.P.C. before the lower appellate Court, for re-opening the appeal and

seeking permission of the Court to let in additional evidence seeking the Court to make use of its inherent powers, still, the subject covering both

the above Interlocutory Applications are vital in the sense that it relates to the proof of the marriage of the first respondent herein and since

according to the respondents herein, they were not in a position to elicit oral evidence of the witnesses concerned with the factum of marriage or

divorce for non-availability of such witnesses at the time when the matter was under trial and since they are available now, they have filed these two

Interlocutory Applications before the lower appellate Court.

The law is liberal regarding letting in such additional evidence and therefore the lower appellate Court has thought it fit to not only order

reopening of the appeal suit which was closed for judgment but also to permit the appellants therein to let in additional evidence thus allowing both

the Interlocutory Applications and this Court is not able to find anything wrong in the fair and decretal orders passed by the lower appellate Court

which have been passed in a well considered and merited manner assigning proper reasons for arriving at such conclusions and therefore the

interference of this Court sought to be made into the said fair and decretal orders passed by the lower appellate Court is not only unnecessary but

unwarranted as well and hence the following order:

In result,

(i) both the above Civil Revision Petitions do not merit acceptance and they are dismissed accordingly.

(ii) The fair and decretal orders both dated 3.1.2003 made in I.A.Nos. 103 and 104 of 2002 in A.S.No.99 of 2000 by the Court of Additional

District Fast Track Judge, Ramanathapuram are hereby confirmed.

However, in the circumstances of the cases, there shall be no order as to costs.

Consequently, C.M.P.No. 2411 of 2003 is also dismissed.