Mrs Mary Pothan, Mr. Deepak George Pothan and Mrs Reesa Pothan @ Reesa James vs M/s. Nandi Housing Pvt. Ltd.

Hon''ble Mrs. Justice B.V. Nagarathna

These writ petitions are filed against the order dated 14/9/2011, passed in O.S.No. 509/95, wherein the applications,- I.A. Nos. 20 and 21, filed by the petitioners herein were dismissed.

The relevant facts of the case are that the petitioners'' late father along with his brother have filed a suit for declaration and injunction. In the said suit, the defendants have also filed a counter claim. After the pleadings were complete the matter was set down for evidence. Petitioners'' father who was the first plaintiff did not let in any evidence. The second plaintiff let in evidence as P.W. 1. After evidence was concluded., the matter was set down for arguments. At that stage, the petitioners as L.Rs. of plaintiff No. 1 filed applications I.As.20 and 21 u/s 151 of CPC seeking permission to adduce their evidence as L.Rs. of the deceased plaintiff No. 1. The said application was dismissed by order dated 14/9/2011 (Annexure W). The said order is assailed in this writ petition.

I have heard the Learned Counsel for the petitioners. He submits that the defendants in the suit have sought a counter claim. The L.Rs. of the first plaintiff had filed the application to re-open the case and permit them to lead additional evidence. The said applications have been wrongly dismissed by the trial Court. He therefore submitted that the said order has to be quashed and an opportunity must be given to the petitioners to let in additional evidence. In support of his case, he has placed reliance on two decisions of the Apex Court.

Having heard the Learned Counsel for parties and on perusal of the material on record, I find that in support of the case of the plaintiffs, the petitioners'' father who was plaintiff No. 1 did not step into the witness box. He did not let in any evidence. It is only the second plaintiff who let in evidence as P.W. 1. The said evidence has been let in both on the plaintiffs case as also with regard to the counter claim. When the petitioners'' father had not let in any evidence at all and had allowed the second plaintiff to let in evidence, the L.Rs. of the first plaintiff later on, finding that there is some lacuna in the evidence cannot be allowed to let in evidence. No material is forthcoming as to why the petitioners'' father has not let in any evidence in the matter. Therefore, no opportunity can be given to the L.Rs. of the plaintiff No. 1 to lead evidence. The same would only amount to granting the plaintiffs a second opportunity to prove their case, which is not permissible. Therefore, the order of the trial Court is just and proper and the same would not call for any interference in these writ petitions.

Infact, in this context, it would be relevant to refer to the decisions of the Apex Court in the case of K.K. Velusamy v. N. Palanisamy in Civil Appeal Nos. 2795-2796/2011 disposed of on 30/3/2011 and also in Shyam Gopal Bindal & Ors. v. Land Acquisition Officer & Anr. in Civii Appeal No. 192/2010 disposed of on 11/1/2010, copies of which have been made available for the petitioners in the course of submissions wherein, the parameters under which the applications filed u/s 151 of CPC for re-opening the evidence or recalling the witnesses have been enunciated by the Apex Court. Infact, the Apex Court has cautioned by stating that the said applications cannot be allowed in a routine manner but only to meet the ends of justice. In the instant case, since the petitioner''s father had not let in any evidence and solely relied upon the evidence of his brother, who was second plaintiff to prove his case, any opportunity to be given to the L.Rs. of the first plaintiff at this stage would only cause prejudice to the defendants in the suit. Therefore, the trial Court was justified in dismissing the said applications and the same would not call for any interference in this writ petition.

In the result, the writ petitions are dismissed.