P. Chinnadurai vs K. Subramaniam

R. Mala, J.—The Present Civil Revision Petition has been filed challenging the impugned Order dated 7.11.2013 made in I.A. No. 1078 of 2013 in O.S. No. 187 of 2008 on the file of the learned Subordinate Court, Tiruchengode, wherein the Application filed to reopen the case for adducing further evidence on the side of the Plaintiffs came to be dismissed

Heard the learned Counsel appearing for the Petitioners and the learned counsel appearing for the Respondent.

The Petitioners herein as Plaintiffs have filed the Suit in O.S. No. 187 of 2008 for declaration that the Plaintiffs are entitled to use the XY Pathway to take cattle and vehicles to the ''B'' series land and also for consequential injunction, stating that the properties were originally owned by one Velappa Gounder, who had two sons viz., Arthanari Gounder and Sengoda Gounder. Arthanari Gounder had a son named Pachiyannan and Sengoda gounder had a son named Venkatachalam, The Suit Schedule property in Survey No.27/2 was partitioned between Pacliiyannan, his son Palanivel, Sengoda Gounder and his son Venkatachalam on 26.7.1996. The ''A'' Scheduled property that has been allotted to Pachiyannan was purchased by the Second Plaintiff viz., Rasappan and the ''B'' Scheduled property that has been allotted to Sengoda Gounder was purchased by the first Plaintiff viz., Chinnudurai. From that date onwards, the Plaintiffs are in enjoyment of the Suit Scheduled property and also the XY Pathway. Since, the Respondent/First Defendant is attempting to restrain the Petitioners/Plaintiffs to use the XY Pathway, they were forced to file the Suit seeking for declaration and consequential injunction.

The Respondent/First Defendant has filed the Written Statement stating that the Plaintiffs have not come to the Court with clean hands and that they have suppressed the material facts. The Plaintiffs are well aware of the fact that their vendor has filed a Suit in O.S. No. 130 of 2003 on the file of the District Munsif Court, Tiruchengode, which is pending. In the said Suit, a Commissioner has been appointed and he has also filed his Report. It was further stated that the Plaintiffs have got a pucca Tar road facility to teach their lands in Old Survey Nos.27/1, 18/5, 17/5, 16, 15/5, 14, 13/4 & 39/2. So, the Plaintiffs are not using the Suit Scheduled pathway.

When the Trial Court, has posted the matter for arguments after completion of oral evidence on both sides, the Plaintiffs came forward with an Application to reopen the case to examine the vendor namely mani @ Venkatachalam. The Trial Court after considering the arguments made by both sides had dismissed the Application, against which the present Revision has been preferred.

Challenging the impugned Order passed by the Trial Court, the learned Counsel appearing for the Petitioners would submit that though the matter was posted for argument, when the Petitioners/Plaintiffs filed an Application to reopen the case to examine the vendor namely Mani @ Venkatachalam, son of Sengoda Gounder, the Trial Court without considering the said Application in proper perspective had dismissed the same. To substantiate his argument, the learned Counsel for the Petitioners relied upon the decision of the Hon''ble Apex Court reported in K.K. Velusamy v. N. Palanisamy, 2011 (3) CTC 422 (SC): 2011 (11) SCC 275 and prayed for allowing of the civil Revision Petition.

Resisting the same, the learned Counsel appearing for the Respondent would submit that the evidence on the side of the Plaintiffs as well as the Respondent was already over. While so, it was stated on the side of the Plaintiffs that they had gone to North India on a business trip and when they returned back, their earlier Counsel had handed over the case bundle Now that they had engaged a new Counsel and they were advised to file the Application to open the case to examine their Vendor on their behalf The argument that the said factum was not properly considered by the Trial Court does not merit acceptance, because the Vendor has already filed a Suit in O.S. No.130 of 2003 on the file of the District Munsif Court, Tiruchengode for the very same relief that has been sought for by the Plaintiffs in the present Suit. The said Suit was also dismissed on 18.8.2009, The Petitioners/Plaintiffs are also well aware of the those facts. However, with a view to drag on the proceedings they have filed the Application in I.A No. 1078 of 2013 and the Trial Court had rightly dismissed the same Thus, the learned Counsel for the Respondent prayed for dismissal of the Civil Revision Petition.

To substantiate his argument, the learned Counsel for the Respondent relied upon the following decisions:

S. Ramasamy v. Perumal and others, 2014 (3) CTC 518,

Bagai Construction v. Gupta Building Material Store, 2013 (1) MWN (Civil) 573 (SC), and

Vadiraj Naggappa Vernekar v. Sharad Chand Prabhakar Gogate, 2009 (4) MLJ 288 (SC).

Considered the rival submissions made by both sides and perused the typed set of papers filed by the Revision Petitioners.

It is an admitted fact that the Petitioners herein as Plaintiffs have filed the Suit for declaration that they are entitled to use the XY pathway to take cattle and vehicles to the ''B'' series land and also for consequential injunction. It was stated in the Plaint that the Suit Scheduled properties originally belongs to one Velappa Gounder, who had two sons viz. Arthanari Gounder and Sengoda Gounder Arthanari Gounder had a son named pachiyannan and Sengoda Gouner had a son named Venkatachalam The Suit Scheduled property in Survey No.27/2 was partitioned between pachiyannan, his son Palanivel, Sengoda Gounder and his son Venkatachalam on 26.7.1996. The A'' Scheduled property'' that has been allotted to pachiyannan was purchased by the Second Plaintiff viz., Rasappan and the ''B'' Scheduled property that has been allotted to Sengoda/rounder was purchased by the First Plaintiff viz., Chinnudurai. The XY pathway was in common enjoyment for more than 60 years and now suddenly the Respondent ''First Defendant is trying to put up a fence and hence, the Petitioners/Plaintiffs were forced to file the Suit, for the relief stated above.

The Respondent First Defendant filed a detailed Counter stating that neither the Plaintiffs nor then Vendor has got any right over the property. There is a pucca Tar road to reach the Plaintiffs'' land. Even the Vendor of the Plaintiffs had filed a Suit in O.S. No. 130 of 2003 on the file of the District Munsif Court, Tiruchengode for the very same relief as sought for by the Plaintiffs in the present Suit and the same was dismissed on 18.8.2009.

Now, the only point that has to be decided is whether the impugned Order is sustainable ?

Before adverting to the same, it would be appropriate to consider the decisions relied on by both the parties.

14.1. The learned Counsel for the Revision Petitioners relied upon the decision reported in K.K. Velusamy v. N. Palanisamy, 2011 (3) CTC 422 (SC) : 2011 (11) SCC 275, wherein it was held that the Court in appropriate cases can exercise its discretion to permit reopening of evidence and/or recalling of witnesses for further examination/cross-examination after evidence led by parties is concluded and arguments have commenced or even when arguments have concluded and case has been reserved for judgment, as there is no provision in this regard in CPC after deletion of Order 18, Rule 17-A. It would be appropriate to incorporate Paragraphs 9, 10 & 11 of the said decision

"9. Order 18, Rule 17 of the Code enables the Court, at any stage of a Suit, to recall any witness, who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit The power to recall any witness under Order 18, Rule 17 can be exercised by the Court either on its own motion or on an Application tiled by any of the parties to the Suit requesting the Court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the Court to clarify any doubts it may have in regard to the evidence led by the parties The said, power is not intended to be used to till tip omissions in the evidence of a witness, who has already been examined.

Order 18, Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18, Rule 17 is primarily a provision enabling the Court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the Court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

There is no specific provision in the Code enabling the parties to re-open the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such Orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the Court, the inherent power under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to i.e. open the evidence and/or recall witnesses for further examination. This inherent power of the Court is not affected by the express power conferred upon the Court under Order 18, Rule 17 of the Code to recall any witness to enable the Court to put such question to elicit any clarifications." However, the above Judgment is not applicable to the facts of the present case because in the above citation the Suit was filed for Specific Performance alleging that the Appellant/Defendant entered into a registered Sale Agreement dated 20.12.2006 agreeing to sell the property for a sale consideration of Rs.2,40,000/-. He also paid an advance amount of Rs. 1,60,000/- and the Appellant agreed to execute a Sale Deed by receiving the balance of Rs.80,000/- within three months from the date of sale When the Respondent was ready and willing to perform his part of the contract, the Appellant did not cooperate and hence, the Respondent issued a Notice and was forced to file the Suit. In the said Suit, after the evidence was closed, an Application was filed seeking to cross-examine PW1 & PW2 with reference to the admission made during some conversation which has been recorded in a Compact Disc. The Trial Court after considering the submissions made by both-sides had dismissed the Application stating that the both side evidence has been concluded and the argument was in part heard stage. In that it was held that there is no specific provision in the Code enabling the parties to reopen the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such Orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. The inherent power of the Court is not affected by the express power conferred upon the Court under Order 18, Rule 17 of the Code to recall any witness to enable the Court to put such question to elicit any clarifications.

14.2. But in the given case on hand, the evidence on both sides were closed and when the matter was posted for arguments, the Petitioners/Plaintiffs have come forward with an Application seeking to reopen the case and examine his vendor, stating that his new Counsel had advised him to do so. The Respondent/First Defendant had filed a Counter stating that the Vendor, who was sought to be examined, had already filed a Suit for the very same relief as sought for by the Petitioners/Plaintiffs and the same was dismissed on 18.8.2009. In such circumstances, no purpose will be served even if the vendor is examined as a witness on the side of the Plaintiffs. So, the above citation is not applicable.

15.1. The learned Counsel for the Respondent relied upon the decision of this Court reported in S. Ramasamy v. Perumal and others, 2014 (3) CTC 518, wherein in a Suit for Partition, after the examination of Witnesses on the side of Defendants, an Application was filed to recall PW1 & PW2 for further cross-examination. In that it was specifically stated at the tune of cross-examination of PWs., some important questions were left without putting to them. So, to fill up the lacunae the Application has been filed This Court relied upon the decisions of the Hon''ble Apex Court reported in Vadiraj Naggappa Vernekar v. Sharad Chand Prabhakar Gogate, 2009 (4) MLJ 288 (SC), wherein it was held that, the Court cannot permit the parties to fill up the lacunae in the evidence of the Witness which has already been recorded and that has been followed in the decision reported in Bagai construction v. Gupta Building Material Store, 2013 (1) MWN (Civil) 573.

But, the above citation is not applicable to the facts of the present case because in the given case on hand after cross-examination of Plaintiff side evidence, the Defendant side evidence was also completed and when the matter was posted for argument, the Plaintiffs filed Application to reopen the case and examine the vendor as evidence on their side But the relief sought for is whether the Plaintiffs are entitled for declaration that, they are entitled to use the XY Pathway to take the cattle and vehicles to reach the ''Pb series land. According to the learned Counsel for the Respondent, the vendor had already filed a Suit in O.S. No. 130 of 2003 on the file of the District Munsif Court, Tiruchengode for the very same relief and the same was dismissed on 18 8.2009 So, no purpose will be served if the vendor was examined on the side of the Plaintiffs.

Thus, considering the facts and circumstances of the present case, I am of the view that only with a view to drag on the proceedings, the Petitioners/Plaintiff have come forward with an Application in I.A No. 1078 of 2013 to reopen the case to examine their vendor namely Mani @ Venkatachalam, son of Sengoda Gounder. The Trial Court has considered the same in proper perspective and I do not find any reasons to interfere with the findings of the Trial Court.

In fine, the Civil Revision Petition deserves to be dismissed as devoid of merits, by confirming the fair and Decretal Order dated 7.11.2013 made in J.A. No. 1078 of 2013 in O.S. No. 187 of 2008 on the file of the learned Subordinate Court, Tiruchengode. Consequently, connected Miscellaneous Petition is closed. However, no order as to costs.