Madras High Court
M.Thangaraj vs K.N.John on 8 January, 2021
C.R.P.No.2306 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.01.2021
CORAM
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.No.2306 of 2020
and
C.M.P.No.14491 of 2020
B.K.Mani (died)
1. M.Thangaraj
2. M.Backiam
3. M.Durga
4. M.Latha ... Petitioners
Vs.
K.N.John
Managing Director,
M/s.Sri Iyyan Textile Mills Pvt. Ltd.,
28/2, 7th Cross - Bharathi Park,
Saibaba Colony, Coimbatore,
Coimbatore District. ... Respondent
Civil Revision Petition is filed under Section 227 of the
Constitution of India, to set aside the fair and decreetal order dated
09.10.2020 made in I.A.No.3 of 2020 in O.S.No.184 of 2012 on the file
of the Sub Court, Bhavani.
For Petitioners : Ms.Indira
For Mr.N.Manoharan
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1/8
C.R.P.No.2306 of 2020
For Respondent : No Appearance
ORDER
This Civil Revision Petition has been filed against the fair and
decreetal order dated 09.10.2020 passed in I.A.No.3 of 2020 in
O.S.No.184 of 2012 on the file of the Sub Court, Bhavani.
2. The case of the petitioners is that the suit was filed for recovery
of possession in the year 2012. The respondent filed their written
statement on 24.09.2018. The Trial Court after framing the issues posted
the matter for trial. During the course of trial, P.W.1 was examined and
cross examined, and thereafter, the evidence of the respondent/plaintiff
was closed on 18.02.2020. It was again posted for further evidence on
27.02.2020. On the day, the respondent herein filed I.A.No.3 of 2020 for
recalling his witness and for posting further to file a document which
came to his possession only now which is a sale deed.
3. The main contention of the petitioners is that as the P.W.1 was
already cross examined by the petitioner and he had already admitted his
defence version, he cannot now file a petition to fill up the lacunae,
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C.R.P.No.2306 of 2020
which is not permissible in law. As per the Code of Civil Procedure
which was amended w.e.f. 01.07.2002, Order 18 Rule 17A and Order 13
Rule 2 CPC had been deleted by the Legislature. But without knowing
the said fact, the Trial Court allowed the petition filed for recalling the
witness P.W.1, which is against the law laid by the Hon'ble Supreme
Court in its various judgments. Hence, the learned counsel for the
petitioners prayed for dismissal of the order passed in I.A.No.3 of 2020
in O.S.No.184 of 2012. She also relied upon various judgments of the
Hon'ble Supreme Court in support of her contention.
4. Heard the learned counsel for the petitioners and perused the
documents available on record.
5. The petition filed by the respondent was to recall himself under
Order 18 Rule 17 CPC, which contemplates as under :
“The Court may at any stage of a suit recall any
witness who has been examined and may (subject to the
law of evidence for the time being in force) put such
question to him as the Court thinks fit.”
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C.R.P.No.2306 of 2020
6. It is the case of the respondent that at the time of chief
examination, he pledged the sale deed in order to obtain loan from the
bank and he was not in a position to produce the said sale deed.
Therefore he filed the recall petition to mark the same through P.W.1.
7. The Court below has considered the objections raised by the
respondents' counsel that the petitioner had not mentioned the document
number and the date of execution of document in the plaint. Hence the
petition is not maintainable. The Court below has rightly observed that if
the petition is allowed, the nature of the suit will not be changed. Further,
the respondents would have opportunity to question the veracity of the
documents.
8. However, the petition was allowed subject to the payment of
cost of Rs.3,000/- to the respondents on or before 16.10.2020. Aggrieved
by the same, the petitioners have filed this petition before this Court by
raising various grounds.
9. On perusal of the documents, it is seen that the respondent had
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C.R.P.No.2306 of 2020
purchased a property from the petitioners 20 years back and the
document sought to be marked by him is of the year 2000. The said
document may be the original document which was executed by the
petitioners and the same can be admitted by the Court subject to the
veracity of the documents. Hence, the respondent can be given an
opportunity to mark the same by recalling himself as a witness. Further,
Order 18 Rule 17 CPC enables the Court to recall any witness who has
been examined at any stage of a suit. Hence, this Court is of the
considered view that there is no incorrectness, illegality or impropriety in
the order passed by the Court below in recalling the witness P.W.1 when
the matter is in preliminary stage. The judgments relied on by the learned
counsel for the petitioners are not applicable to the present case on hand
as the nature of those cases are different from the present case on hand.
10. In view of the above, this Civil Revision Petition is dismissed
and the order of the Court below in I.A.No.3 of 2020 in O.S.No.184 of
2012 is confirmed. No costs. Consequently, connected miscellaneous
petition is closed.
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C.R.P.No.2306 of 2020
11. Since the matter is in a preliminary stage, the respondent is
directed to file the document without making any further delay. After
filing the document, the petitioner is at liberty to question the same, if
they intend to question it. The respondent is further directed to pay the
cost of Rs.3000/- imposed by the Court below to the petitioners on or
before 15.02.2021, if not already paid.
08.01.2021
raja
Index : yes/no
Internet : yes/no
Speaking Order/Non-Speaking Order
To
The Sub Court, Bhavani.
https://www.mhc.tn.gov.in/judis/
C.R.P.No.2306 of 2020
https://www.mhc.tn.gov.in/judis/
C.R.P.No.2306 of 2020
V.BHAVANI SUBBAROYAN.J.,
raja
Pre-Delivery Order in
C.R.P.No.2306 of 2020
and
C.M.P.No.14491 of 2020
08.01.2021
https://www.mhc.tn.gov.in/judis/
