Madras High Court
R.Prabu ... Revision vs K.Krishnan on 21 September, 2021
C.R.P. (NPD) No.2188 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.09.2021
CORAM :
THE HONOURABLE MR. JUSTICE G. CHANDRASEKHARAN
C.R.P. (NPD) No.2188 of 2019
R.Prabu ... Revision Petitioner
Vs.
K.Krishnan ... Respondent
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the dated 28.02.2019 made in C.M.A. No.3 of 2018 on
the file of Principal District Judge, Vellore, Vellore District, confirming the
order of the learned Subordinate Judge, Vellore, dated 03.07.2018 made in
I.A.No.371 of 2016 in O.S.No.174 of 2005.
For Petitioner : Mr.P.Chandrasekar
For Respondent : Ms.B.Sindhiya
for M/s.G.Vijayakumar
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C.R.P. (NPD) No.2188 of 2019
ORDER
(Through Video Conferencing)
This Civil Revision Petition is filed to set aside the judgment in
C.M.A.No.3 of 2018, by the learned Principal District Judge, Vellore, on
28.02.2019, confirming the order of the learned Principal Subordinate
Judge, Vellore, in I.A.No.371 of 2016 in O.S.No.174 of 2005, passed on
03.07.2018.
2.Learned counsel for the petitioner submitted that the petitioner filed
the suit for specific performance in respect of a sale agreement dated
09.08.2002. When the matter was pending for cross-examination, the
petitioner was not able to appear. On 08.09.2016, instead of closing the
petitioner's evidence for his non-appearance and proceeding further with the
defendant's evidence, the learned Judge has dismissed the suit for default.
Therefore, he filed a petition for restoring the suit, which was dismissed on
03.07.2018. The learned Subordinate Judge, without considering the merits
of the case, dismissed the restoration petition filed in I.A.No.371 of 2016.
The appeal filed in C.M.A.No.3 of 2018 was also dismissed. Against the
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C.R.P. (NPD) No.2188 of 2019
said dismissal order, this Civil Revision Petition is preferred.
3.The learned counsel for the petitioner further submitted that he
produced the B-Diary Extract of the suit from 06.06.2007 till the case was
dismissed for default on 08.09.2016. The Diary Extract shows that the
petitioner was examined-in-chief on 06.11.2014 and Exs.A1 to A7 were
marked and the case was adjourned for cross-examination of P.W.1 to
13.11.2014. From 13.11.2014, till 08.09.2016, the case was adjourned on
several dates for cross-examination. It is submitted by the learned counsel
for the petitioner that the cross-examination was deferred only at the request
of the defendant/respondent. Therefore, the dismissal of the suit for the
failure of the petitioner to appear on one particular date is not correct.
4.In response, the learned counsel for the respondent submitted that
the Diary Extract does not reflect the presence of the petitioner and that
case was adjourned at the instance of the defendant. The orders of the
learned trial Judge and the learned Appellate Judge show that it was the
petitioner, who has not appeared before the Court for facing cross-
examination. Therefore, the petition for restoring the suit was rightly
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C.R.P. (NPD) No.2188 of 2019
dismissed by the Court, as also confirmed by the Appellate Judge. By so
submitting, the learned counsel prayed for dismissal of this Civil Revision
Petition.
5.Considered the rival submissions and perused the records.
6.A perusal of the B-Diary Extract shows that the suit was once
dismissed for default on 04.02.2010 and then, it was restored. On
20.01.2014, the defendant was set ex parte and the petition filed under
Order 9 Rule 7 of CPC to set aside the ex parte order, was allowed. As
already illustrated, the petitioner was examined as P.W.1 on 06.11.2014
and the case was adjourned to 13.11.2014 to 08.09.2016 on several dates
for the purpose of cross-examination of P.W.1. It is seen from the Diary
Extract that the adjudication order of the learned Subordinate Judge is
“Cross of P.W.1 at request adjourned.” This adjudication order does not
reflect as to whether the petitioner was present or the respondent was
present and at whose request, the cross-examination was adjourned. It is a
nebulous order giving room for different interpretations. The learned trial
Judge ought to have clearly recorded in the adjudication order as to, at
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whose instance, the cross-examination was adjourned. When that is not
recorded, it can be interpreted in both ways, that the cross-examination was
adjourned either at the request of the petitioner or at the request of the
respondent.
7.In this view of the matter and considering the fact that the parties
must be given an opportunity to present their case and contest the matter
and it is always not desirable to dispose the matter ex parte, this Court
opines that the petitioner should be given an opportunity to present his case
by submitting himself to cross-examination and producing his witnesses.
8.In this view of the matter, the judgment in C.M.A.No.3 of 2018,
confirming the order in I.A.No.371 of 2016 in O.S.No.174 of 2005, is set
aside and this Civil Revision Petition is allowed. The suit is directed to be
restored. P.W.1 should be present before the Court on the date fixed by the
learned Subordinate Judge, Vellore, and cross-examination should be
completed on a day-to-day basis and thereafter, the plaintiff's side witnesses
must be examined and the defendant's side witnesses must be examined and
the case must be disposed as expeditiously as possible, preferably within a
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C.R.P. (NPD) No.2188 of 2019
period of three months from the date of receipt of a copy of this order. No
costs.
21.09.2021
mkn
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
To
1.The Principal District Judge,
Vellore.
2.The Subordinate Judge,
Vellore, Vellore District.
G. CHANDRASEKHARAN, J.
mkn
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