Madras High Court
Ayyasamy vs Lakshmi (Deceased) on 23 July, 2021
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.07.2021
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
C.R.P.(PD) Nos.1028 & 1029 of 2019
and
C.M.P.No.6786 of 2019
Ayyasamy ... Petitioner / Petitioner / Defendant
(in both the CRPs)
Vs
1.Lakshmi (deceased)
2.K.Sakthivel ... Respondent / Respondents / Plaintiffs
(in both CRPs)
Civil Revision Petitions filed under Article 227 of the Constitution
of India, to set aside the fair and decreetal order dated 13.12.2018 passed
in I.A.No.437 of 2018 and I.A.No.438 of 2018 in O.S.No.239 of 2018 on
the file of the I Additional District Munsif Court, Bhavani.
For Petitioner .. Mr.V.Vijayakumar
For 2nd Respondent .. Mr.S.Senthilnathan
https://www.mhc.tn.gov.in/judis/
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COMMON ORDER
This Civil Revision Petition has been filed taking advantage of
Article 227 of the Constitution of India, to to set aside the fair and
decreetal order dated 13.12.2018 passed in I.A.No.437 of 2018 and
I.A.No.438 of 2018 in O.S.No.239 of 2018 on the file of the I Additional
District Munsif Court, Bhavani.
2.Heard Mr.V.Vijayakumar, learned counsel for the revision
petitioner and Mr.S.Senthilnathan, learned counsel for the 2nd respondent.
3.The 1st respondent / Lakshmi had filed O.S.No.239 of 2010
which is now pending on the file of the I Additional District Munsif
Court, Bhavani. The said suit had been filed for permanent injunction
restraining the defendant from interfering with peaceful possession and
also for recovery of a portion of the property in which it is claimed that
the defendant had encroached and also for costs of the suit.
4.The trial proceeded. The plaintiff examined herself as and was
also cross-examined. Thereafter, the defendant also examined himself
and also was cross-examined. The matter was posted for arguments. At
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that time, unfortunately, the plaintiff / Lakshmi died. The 2nd respondent
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herein / K.Sakthivel filed I.A.No.265 of 2018 under Order I Rule 10 of
CPC seeking to implead himself as 2nd plaintiff. He claimed right under a
Will said to executed by Lakshmi. It is the contention of
Mr.V.Vijayakumar, learned counsel for the revision petitioner, that there
are certain doubts which surrounds the execution of the will and it is also
contended that Lakshmi had a mother surviving and therefore, the 2nd
respondent / K.Sakthivel cannot claim declaration of title of any of the
property. Raising those grounds, an additional written statement has also
been filed by the revision petitioner herein.
5.The matter was then posted for arguments. At that stage, the
revision petitioner / defendant filed I.A.Nos.437 and 438 of 2018 seeking
to reopen the evidence of the plaintiff and to recall as a witness,
K.Sakthivel for cross-examination. Both these applications were
dismissed by order dated 13.12.2018 leading to the filing of the present
revision petitions.
6.It had been observed by the learned Additional District Munsif,
Bhavani, that the 2nd plaintiff / K.Sakthivel had not grazed the witness
box and therefore, there was no issue of cross-examination. It is however,
https://www.mhc.tn.gov.in/judis/
contended by Mr.V.Vijayakumar, learned counsel for the revision
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petitioner that he claims right through a Will and therefore, questions
surrounding the Will have to be put in.
7.I would not interfere with the said order now questioned in this
Revision Petition. If a party produces a Will, the proof of the same is a
burden cast entirely on the propounder of the Will. He may take up the
option of proving the Will or he may not take up the option of proving
the will. The choice is left with said individual. The Will cannot be
proved in manner known to law, unless it is marked as a document. The
2nd plaintiff has been impleaded on the strength that he is a beneficiary
under the Will of deceased 1st plaintiff, Lakshmi. But however, that
remains a mere statement.
8.Let arguments therefore be advanced by both the plaintiff and
the defendant in the suit and the defendant during the course of
arguments may also impress the learned Judge that the Will which is
claimed to give a right to the 2nd plaintiff had not been proved and let the
learned Munsif pass a judgment on all those aspects.
9.It is to be noted that the revision petitioner herein had also filed
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additional written statement and contentions therein should also be taken
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note by the learned Munsif. Therefore, recalling or putting questions in
cross-examination, when a witness had not even tendered evidence in
chief would not serve any purpose.
10.Let the parties advance arguments. No further evidence is to be
recorded in O.S.No.239 of 2010. The matter is pending for more than a
decade. Therefore, a direction is given to the learned I Additional District
Munsif, Bhavani, to dispose of the said suit on or before 31.08.2021.
11.A responsibility is cast on both the learned counsels for the
plaintiff and the defendant to advance arguments in the suit without
taking any unnecessary adjournments.
12.With the above observations, the Civil Revision Petitions are
disposed of. No costs. Consequently, the connected Civil Miscellaneous
Petition is closed.
23.07.2021
smv
Index : Yes / No
Internet : Yes / No
Speaking order : Yes / No
To:-
The I Additional District Munsif Court, Bhavani.
https://www.mhc.tn.gov.in/judis/
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C.V.KARTHIKEYAN,J.
smv
C.R.P.(PD) Nos.1028 & 1029 of 2019
23.07.2021
https://www.mhc.tn.gov.in/judis/
