S. Prabha vs Nambirajan

P.R. Shivakumar, J.—The 2nd defendant in the original suit O.S. No.207/2011 pending on the file of the First Additional Sub Judge, Nagercoil, is the petitioner in all the three revision petitions. The plaintiff in the original suit is the first respondent and the first defendant in the original suit is the second respondent in all the revision petitions.

The said suit came to be filed by the first respondent herein against the 2nd second respondent and the revision petitioner (defendants 1 and 2) for a declaration of title of the first respondent/plaintiff over the plaint schedule property, for recovery of possession and for permanent injunction restraining the defendants from trespassing or committing acts of waste in the suit property and for cost.

When the suit was in the part heard stage after evidence was adduced on both sides and the evidence on both sides came to be closed and the suit stood listed for hearing arguments, the revision petitioner herein/second defendant filed three applications in I.A. Nos.123/2013, 124/2013 and 125/2013 for reopening the case to enable the revision petitioner/second defendant to adduce additional evidence, to recall the revision petitioner/second defendant, who deposed as DWs.1 and 3) to receive the additional documents produced by the revision petitioner along with the application and mark them as documents on the side of the revision petitioner/second defendant. The documents sought to be produced are the original sale deed dated 25.05.2008 executed by the first defendant in favour of the second defendant, Kist receipts dated 22.09.2007 and 15.07.2009 and encumbrance certificate dated 25.09.2007 covering the period between 1.1.1993 and 24.09.2007.

The applications were resisted by the first respondent herein/plaintiff and at the conclusion of enquiry, the learned trial judge, by a common order dated 08.06.2013, dismissed all the three applications. As against the dismissal of I.A. Nos.123 to 125/2013, the revision petitioner has filed C.R.P.(PD)(MD) No. 1380 /2013, 1382/2013 and 1381/2013 respectively, on various grounds set out in the grounds of revision filed in each one of the revision petitions. All the three civil revision petitions are taken up together for hearing and disposal.

The second respondent in the revision/first defendant in the original suit remained ex-parte before the trial court and hence notice to the 2nd respondent herein has been dispensed with. The only contesting respondent, namely the first respondent/plaintiff in the original suit is represented by a counsel. The arguments advanced by Mr. R. Subramanian, on behalf of Mr. P.T. Ramesh Raja, counsel on record for the petitioner and the arguments advanced by Mr. S. Meenakshisundaram, learned counsel for the first respondent/plaintiff were heard. The materials produced by the parties in the form of typed set of papers were also perused.

The first respondent in all the revision petitions, namely Nambirajan (plaintiff), has filed the original suit O.S. No.207/2011 on the file of the learned First Additional Subordinate Judge, Nagercoil for a declaration, for recovery of possession and for permanent injunction against the second respondent in the revision petition (first defendant) and the revision petitioner (second defendant). The second respondent/first defendant did not evince interest in contesting the case. He remained ex-parte before the trial court. The revision petitioner herein/2nd defendant alone contested the case by filing a written statement. The first respondent/plaintiff claimed title to the suit property on the basis of his contention that he purchased the plaint schedule property from the Power of Attorney holder of legal heirs of Viswambaram (deceased) under a sale deed dated 09.06.2004 registered as document No.2300/2004 on the file of the Sub Registrar, Kottaram and contended that the suit property having an extent of 60 cents, after such purchase, was in his peaceful possession and enjoyment; that an extent of 36.338 cents out of the above said extent came to be acquired for National Highways by the Competent Authority and Special District Revenue Officer, Land Acquisition (National Highways), Tirunelveli and for such acquired property, the plaintiff received compensation; that the remaining property after deducting the acquired property absolutely belonged to the first respondent/plaintiff, that the same was re-numbered as R.S. No. 552/9A, over which the revision petitioner and the second respondent (defendants) did not have any manner of right and that on 25.07.2008, the defendants along with other men attempted to trespass into the suit property and committed the acts of waste, which attempt was thwarted by the first respondent/plaintiff. Based on the above said contentions, the first respondent/plaintiff had chosen to make the above said prayer for declaration, recovery of possession and for a permanent injunction restraining the defendant from trespassing or committing any act of waste in respect of the suit property and permanent injunction.

The revision petitioner/second defendant resisted the suit by contending that the property comprised in R.S. No.552/9 originally belonged to 1) Lekshmana Pillai S/o. Parameswaran Pillai, 2) Visuvasam S/o. Kesavan and 3) Visuvambaran; that an extent of 23-3/4 cents forming part of the share of the above said Lekshmana Pillai, after his death, devolved upon his legal heirs: 1) Smt. Sathy (wife), 2) Prema Shyam Lekshmanan and 3) Preethi Lekshmanan (children); that the sale deed relied on by the first respondent/plaintiff, which was registered as document No. 2300/2004, could not be the one obtained from the legal heirs of Lekshmana Pillai and hence the same would not bind the share of the legal heirs of Lekshmana Pillai; that the sale deed relied on by the first respondent/plaintiff was nothing but a sham and nominal document; that the suit schedule property measuring 23-3/4 cents, after deducting the land acquired by the government for laying of NH-7 that formed the share of late Lekshmana Pillai was purchased by the revision petitioner/first defendant from the second respondent/second defendant, who is the son-in-law of Lekshmana Pillai and the Power of Attorney holder of the legal heirs of Lekshmana Pillai; that by virtue of the said purchase, the revision petitioner/second defendant became the absolute owner of the plaint schedule property and that the ill-conceived and ill-motivated suit filed by the first respondent/plaintiff, should be dismissed. He had also contended that the suit was bad for non-joinder of necessary parties and that the suit was liable to be dismissed, as the plaintiff had not come to the court with clean hands.

The learned trial judge, after framing necessary issues, conducted a trial. After recording the evidence adduced on both sides was over and at the time when the suit stood listed for hearing arguments, the revision petitioner/second defendant, chose to file the above said interlocutory applications I.A.Nos.123 to 125 of 2013 to reopen the case under Section 151 CPC for adducing further evidence on the side of the revision petitioner/second defendant, to recall the revision petitioner under Order XVIII Rule 17 CPC r/w Section 151 CPC in order to mark the additional documents sought to be produced and for reception of additional documents under Order VIII Rule 1-A(3) of CPC respectively.

In the affidavit filed in support of the applications, the revision petitioner had stated that, since he got some documents in order to prove his case and make his case more clear, the case had to be reopened for further evidence on the side of the revision petitioner/second defendant and the revision petitioner/second defendant should be recalled for marking those documents, besides condoning the delay in producing those documents and receiving those documents. Except the bald averment that he had got some documents to support his case, nothing has been mentioned in the affidavit as to why those documents could not be produced earlier.

The applications were resisted by the first respondent herein/plaintiff contending that the filing of the said applications was nothing but an attempt to drag on the matter as long as possible. In support of his contention, the first respondent/plaintiff narrated the sequence of events prior to the filing of the above said applications and contended that the previous conduct of the revision petitioner in making every attempt to drag on the case, would show lack of bona fide in the applications and that the same was an attempt to protract the case as long as possible. The first respondent/plaintiff also referred to various adjournments obtained by the revision petitioner/second defendant and also the fact that on an earlier occasion, when the case stood posted for hearing arguments after completion of evidence, the revision petitioner filed an application in I.A. No.326/2012 for appointment of an Advocate Commissioner, which was dismissed by the trial court on 15.12.2012 and the said order came to be confirmed by this court in a revision petition in C.R.P.(MD) No.453/2013 on 13.03.2013 and the further fact that after suffering the dismissal of the said petition filed before this court, the revision petitioner is relentless in filing the applications for reopening the case and for recalling the witness on the side of the revision petitioner/second defendant.

The learned trial judge, upon hearing both sides, referring to the alleged attempts made by the revision petitioner/second defendant to drag on the case on earlier occasions, chose to arrive at a conclusion that the applications were liable to be dismissed. The learned trial judge also referred to the fact that when the case stood posted for hearing arguments to be advanced on both sides to 14.08.2012, 07.12.2012 and 19.12.2012, the revision petitioner/second defendant chose to file several applications to reopen the case, to adduce additional evidence and for appointment of an Advocate-Commissioner and for seeking permission to file additional documents and that the said delaying tactics was also referred to by the High Court in its order dated 13.03.2013 made in C.R.P.(MD) No.453/2013. The learned trial Judge also stated that the High Court in the previous civil revision petition held that Visuvambaram had purchased the property from the 2nd respondent/first defendant. The learned trial judge also made an observation that the revision petitioner/2nd defendant claimed to have purchased the property from the 2nd respondent/first defendant on 25.05.2008, whereas the property had been purchased by one Viswambaram from the second respondent therein/first defendant on 17.11.1995 itself. The learned trial Judge also made an observation that the present sale deed allegedly obtained by the second respondent/first defendant on 25.05.2008 could not be a genuine transaction and that if at all the revision petitioner/second defendant had purchased the suit property under the sale deed dated 25.05.2008, the revision petitioner/second defendant would not have failed to produce the sale deed along with the written statement, besides making necessary averments regarding the said sale in the written statement. The learned trial judge also observed that there was absence of necessary averments as to in whose possession the documents now sought to be produced were at the time of filing the pleadings and the reasons for the non-production of the same earlier. On the basis of the above said observations, the learned trial judge chose to hold that the applications filed for reopening the case for further evidence of the revision petitioner/second defendant, to recall the revision petitioner and for receiving the documents condoning the delay in producing the same, were nothing but dilatory tactics and hence the applications were liable to be dismissed.

The learned counsel for the revision petitioner argued that though there is absence of averment in the supporting affidavit regarding the fact as to who was having the possession of the document, namely sale deed dated 25.05.2008, that alone was stated as the reason for expressing a view that the same would show delaying tactics adopted by the revision petitioner/second defendant, then the revision petitioner/second defendant would not have much scope for challenging the said order and that on the other hand, the very observation made by the learned trial judge to the effect that the sale deed relied on by the revision petitioner/second defendant dated 25.05.2008 could not be true and that if at all the sale deed could be genuine, the revision petitioner would have referred to the said transaction in the written statement itself, would show that the revision petitioner/second defendant got a valid ground for challenging the order of the learned trial judge. It is the contention of the learned counsel for the revision petitioner that the first observation made by the learned trial judge is unwarranted and it would amount to rendering a finding regarding the validity and reliability of the sale deed dated 25.05.2008, without even allowing the revision petitioner/second defendant to produce the same and adduce evidence in proof of the same. The learned counsel for the revision petitioner also contended that the second observation made by the learned trial judge was to the effect that if at all the sale transaction was genuine, the revision petitioner/second defendant would have referred to the same in his written statement was factually incorrect as the said observation made by the learned trial judge was capable of giving a meaning that there was no averment made in the written statement of the revision petitioner/second defendant that he had purchased the plaint schedule property from the second respondent herein/first defendant as power agent of the legal heirs of Lekshmana Pillai.

The above said observation made by the learned trial judge in vernacular is reproduced for better appreciation."

"tp!;thk;guj;jpw;F 17-11-1995 - y; brhj;ij tpw;Wtpl;L jw;bghGJ 25-5-2008 - y; Kjy; gpujpthjpaplk; fpiuak; th'';fpajhf kDjhuh; Twpa[s;shh;/ cz;ikapnyna nkw;go fpiuag; gj;jpuk; cz;ikahdjhf ,Ue;jpUe;jhy; vjph;tHf;Fiuapnyna nkw;go tptu'';fis brhy;yp nkw;go Mtz'';fis jhf;fy; bra;jpUf;fKoa[k;"

A consideration of the above said observation will show that the trial court was of the view that the revision petitioner/second defendant himself had admitted the sale of the property on 17.11.1995 to Viswambaram and that now he wants to claim the said property to have been purchased from the second respondent/first defendant under a sale deed dated 25.05.2008. A perusal of the copy of the written statement produced in the typed set of papers makes it obvious that though the revision petitioner/second defendant did not mention the date of sale deed under which he purchased the plaint schedule property from the second respondent/first defendant (as power agents of legal heirs of Lekshmana Pillai), clear averments had been made in the written statement to the effect that the entire property comprised in S.No.552/09 of Agastheeswaram village, Kanyakumari District originally belonged to three persons - 1) Lekshmana Pillai, 2) Visuvasam and 3) Visuvambaram and that hence the plaint averment that Visuvambaram was the original owner of the suit schedule property was not correct.

It was also contended in the written statement that an extent of 60 cents comprised in S.No.552/9A shown as the plaint schedule property, was the share allotted to Lekshmana Pillai in R.S. No.552/9; that after the death of Lekshmana Pillai, his wife Sathy and his daughters Prema Shyam Lekshmanan and Preethi Lekshmanan became entitled to the said property and were in possession; that Visuvambaram was not conferred with any valid title; that the balance extent after acquisition that had been assigned R.S. No.552/9A came to be purchased by the revision petitioner/second defendant from the second respondent/first defendant on the strength of the power of attorney executed by the above said legal heirs of Lekshmana Pillai and that the revision petitioner/second defendant, after deriving title to the suit property, has been in continuous possession and enjoyment of the plaint schedule property. The above said averments will make it clear that necessary averments regarding the derivation of title had been made in the written statement. The revision petitioner/second defendant had merely failed to give the date of sale deed under which he purchased the property. That being so, the learned trial judge chose to make an observation as if he had not referred to such a purchase made by him from the second respondent/first defendant in the written statement of the revision petitioner/second defendant. Such an observation is quite erroneous and contrary to the fact. The observation made by the learned trial judge is also capable of giving an impression that the revision petitioner/second defendant himself admitted the sale of the plaint schedule property to one Visuvambaram, whereas there is no such admission found in the written statement. The revision petitioner/second defendant has made clear averments in his written statement that the sale deed allegedly obtained by the plaintiff from Visuvambaram, would not bind the defendants, who had purchased it from the real owners. In addition, the learned trial judge has also committed an error in expresseing an opinion, which is unwarranted regarding the genuineness of the document without such a document being produced in evidence.

For all the reasons stated above, this court comes to the conclusion that the common order of the learned trial judge dismissing the applications in I.A. Nos.123/2013, 124/2013 and 125/2013 in O.S. No.207 of 2011 are patently erroneous exhibiting improper exercise of jurisdiction conferred on the lower court, capable of being corrected by this court in exercise of power of superintendence under Article 227 of the Constitution of India; that all the civil revision petitions deserve to be allowed and that the interest of justice requires the revision petitioner to be given an opportunity to adduce additional evidence in proof of his case by allowing I.A. Nos.123/2013, 124/2013 and 125/2013 in O.S.No.207 of 2011. However, considering the fact that the applications came to be filed when arguments were heard in part after evidence on both sides were closed, this court deems it appropriate to tax the revision petitioner/second defendant with a cost of Rs.5,000/- to be paid to the contesting respondent, namely the first respondent/plaintiff. This court also deems it appropriate to direct the learned trial judge to complete the trial and dispose of the suit as expeditiously as possible, in any event not later than three months from the date of receipt of a copy of this order.

In the result, all the civil revision petitions are allowed. The common order dated 08.06.2013 made in I.A. Nos.123/2013, 124/2013 and 125/2013 in O.S. No.207 of 2011 and the decreetal orders dismissing the said applications are set aside. All the Interlocutory Applications (I.A. Nos.123/2013 to 125/2013) in O.S. No.207 of 2011 on the file of the trial court shall stand allowed. The revision petitioner/second defendant shall pay a sum of Rs. 5,000/- as cost to the first respondent/plaintiff. The learned trial judge is directed to dispose of the suit as expeditiously as possible, in any event, not later than three months from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition is closed.