Madras High Court
Palaniammal vs Shanmugasundari @ Kanaka on 28 August, 2023
C.R.P.Nos.3693 & 3695 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.08.2023
CORAM :
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
C.R.P.Nos.3693 & 3695 of 2019
and
C.M.P.No.24290 of 2019
1.Palaniammal
2.Devarasu .. Petitioners
in both petitions
vs
1.Shanmugasundari @ Kanaka
2.V.Palanisamy .. Respondents
in both petitions
Prayer in CRP No.3693 of 2019: Petition filed under Section 115
CPC to set aside the order dated 16.08.2019 passed in IA No.4 of
2019 in O.S.No.155 of 2012 on the file of Principal District Munsif
Court, Tiruchengode and allow the petition seeking to recall the 1 st
petitioner as witness DW3.
Prayer in CRP No.3695 of 2019: Petition filed under Section 115
CPC to set aside the order dated 16.08.2019 passed in IA No.3 of
2019 in O.S.No.155 of 2012 on the file of Principal District Munsif
Court, Tiruchengode and allow the petition seeking to recall the 1 st
petitioner as witness DW3.
For Petitioners : Mr.S.N.Subramani
(in both CRPs)
For Respondents : Mr.Kaushik Narayanan
for Mr.V.K.Vijaya Raghavan
(in both CRPs)
https://www.mhc.tn.gov.in/judis
C.R.P.Nos.3693 & 3695 of 2019
COMMON ORDER
The defendants are the petitioners before this Court. These
civil revision petitions arise as against the dismissal of applications
to re-open and to re-call evidence of the defendants.
2. O.S.No.155 of 2012 was originally presented as
O.S.No.116 of 2012 on the file of the vacation Court at Namakkal.
Subsequently, it was transferred and re-numbered as O.S.No.155 of
2012 on the file of the District Munsif Court, Thiruchengode.
3. Learned counsel on either side would submit that due to
bifurcation of jurisdiction and creation of new court at
Kumarapalayam, the suit is now pending before the learned District
Munsif Court, Kumarapalayam.
4. In the suit for bare injunction, the second defendant
entered and filed a written statement on 05.10.2012. D1 and D3
engaged a fresh counsel and filed the written statement in the year
2014. D3 entered the witness box and filed a proof affidavit stating
he is deposing on behalf of the first and third defendant. After his
cross examination was over, learned counsel for the respondents
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C.R.P.Nos.3693 & 3695 of 2019
would bring to my notice that DW2 was examined. However, he did
not turn up for cross examination and therefore his evidence was
eschewed. Thereafter, two other witnesses were examined, who
learned counsel for the respondents would submit have made
admissions in his favour.
5. At that stage, applications in I.A.Nos.3 and 4 of 2019
were taken up to re-open and to re-call evidence of the defendant in
order to examine the first defendant Tmt. Palaniammal. The said
applications were dismissed on the ground that it was intended to
cause delay to the proceedings and also in order to fill up lacunae in
the same.
6. Heard Mr.S.N.Subramani, learned counsel for the
petitioners and Mr.Kaushik Narayanan, learned counsel for the
respondents.
7. I have carefully examined the records and the
submissions made on either side.
8. The suit is only for permanent injunction and it is not a
suit for title. The narration of the facts show that the defendant
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C.R.P.Nos.3693 & 3695 of 2019
have played to some extent in attempting to drag on the
proceedings. However, with some earnest, they have come forward
presently to examine the first defendant. The question of filling up
of lacunae would arise if a decree had been passed in favour of the
plaintiff. As long as the suit is open, it is always open to either party
to let in evidence in order to project the best possible case that they
can before this Court. Therefore, I am not inclined to dismiss these
two revision petitions on the ground of attempting to fill up the
lacunae or on the grounds of delay.
9. Nonetheless, I have to take into consideration the
hardship that has been caused to the plaintiff on account of the
pendency of the suit from the year 2012. While allowing I.A.Nos. 3
and 4 of 2019, I am inclined to impose costs for the hardships
caused to the plaintiff and also fix a time limit before which the
proceedings should be concluded. Therefore, C.R.P.Nos. 3693 &
3965 of 2019 stand allowed on the following conditions:-
(i) the defendants shall pay to the plaintiffs a
and 4 of 2019;
(ii) the said cost must be paid on or before
18.09.2023. If the cost is not paid, the civil
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C.R.P.Nos.3693 & 3695 of 2019
revision petitions will stand dismissed.
(iii) If on 19.09.2023, the defendants produce a
receipt to show that they have paid the amount
to the plaintiffs, then the learned Judge is
requested to commence the evidence of the
first defendant on that date itself and close the
same, including the cross-examination on or
before 22.09.2023. The matter shall go on day-
to-day basis and the learned Judge is requested
to pronounce the judgment in the suit on or
before 30.11.2023.
10. With the above direction, the civil revision petitions
stand allowed. The trial Judge is requested to act on the web copy
of the order. He need not insist on a certified copy of the same. No
costs. Connected miscellaneous petition is closed.
28.08.2023
Index:Yes/No
Neutral Citation:Yes/No
ssm
Note to Registry : Upload forthwith.
https://www.mhc.tn.gov.in/judis
C.R.P.Nos.3693 & 3695 of 2019
V. LAKSHMINARAYANAN,J.
ssm
To
1.The District Munsif Court, Thiruchengode.
2.The District Munsif Court, Kumarapalayam.
C.R.P.Nos.3693 & 3695 of 2019
28.08.2023
https://www.mhc.tn.gov.in/judis
