Madras High Court
V.Ramasamy vs M/S.Karur Naban Financiers on 2 March, 2023
A.S(MD)Nos.60 of 2018 and 107of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.03.2023
CORAM
THE HON'BLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR.JUSTICE K.K. RAMAKRISHNAN
A.S(MD)Nos.60 of 2018 and 107 of 2017
and
C.M.P(MD)Nos.3557 and 3558 of 2018
and
C.M.P(MD)No.6282 of 2018
A.S(MD)No.60 of 2018
1.V.Ramasamy
2.R.Sivakumar .. Defendants /Appellants
Vs.
M/s.Karur Naban Financiers,
Represented by its Managing Partner
P.Murugesan,
S/o.K.Palaniappan,
Having Office at
197/127, 1st Floor, Jawahar Bazaar,
Karur Town. .. Plaintiff/ Respondent
Appeal filed under Section 96 of the Code of Civil Procedure, to set
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A.S(MD)Nos.60 of 2018 and 107of 2017
aside the judgment and decree dated 04.08.2016 in O.S.No.3 of 2013 on the
file of the Principal District Judge, Karur.
For Appellants :Mr.VR.Shanmuganathan
For Respondent :Mr.G.Prabhu Rajadurai
A.S(MD)No.107 of 2017
1.V.Ramasamy
2.R.Sivakumar .. Defendants /Appellants
Vs.
M/s.Karur Naban Financiers,
Represented by its Managing Partner
P.Murugesan,
S/o.K.Palaniappan,
Having Office at
197/127, 1st Floor, Jawahar Bazaar,
Karur Town. .. Plaintiff/ Respondent
Appeal filed under Section 96 of the Code of Civil Procedure, to set
aside the judgment and decree dated 04.08.2016 in O.S.No.2 of 2013 on the
file of the Principal District Judge, Karur.
For Appellants :Mr.VR.Shanmuganathan
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A.S(MD)Nos.60 of 2018 and 107of 2017
For Respondent :Mr.G.Prabhu Rajadurai
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COMMON JUDGMENT
DR. G.JAYACHANDRAN,J.
AND
K.K. RAMAKRISHNAN,J.
These appeal suits are directed against the judgment and decree
passed by the District Judge, Karur in O.S.Nos.3 and 2 of 2013, dated
04.08.2016. It is a suit for recovery of money based on a mortgage deed.
After the completion of pleadings, the parties went for trial. On the side of
the plaintiff, two witnesses were examined and 5 exhibits were marked. The
firs defendant mounted the witness box and completed the examination in
chief. Thereafter, the matter was adjourned for examination of D.W.1 and
after few adjournments there was no efforts taken on the side of the plaintiff
to cross-examine D.W.1. Hence, the learned trial Judge closed the trial and
passed an order allowing the suit. The said judgment is challenged by the
defendants on various grounds, more particularly, the closure of the trial
without affording an opportunity to marshal the other witness and place the
argument on behalf of the defendants.
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A.S(MD)Nos.60 of 2018 and 107of 2017
2.To substantiate the grounds, the learned counsel appearing for the
appellants relied upon the “B” diary extract, which indicates that after
framing of issues on 23.06.20214, the examination of witnesses commenced
on 03.12.2014 on filing of proof affidavit in lieu of the chief examination of
P.W.1. Thereafter, after few adjournments, the cross-examination of P.W.1
completed including marking of documents completed, on 25.11.2005 and
the matter was adjourned for further evidence. On 20.01.2016, P.W.2 was
examined in chief and adjourned for cross-examination. After few
adjournments, P.W.2 cross-examination completed on 14.02.2016 and the
trail was adjourned for defendants side witness.
3.Before the defendants came into the witness box, an application was
filed for reopen or recalled by P.W.1 in O.S.No.3 of 2013. On 11.04.2016,
P.W.1 was present and for examination, on 20.04.2016. D.W.1 filed his
proof affidavit, the matter was adjourned for cross examination to
27.04.2016. On that day, witness was present, but at the request of the
plaintiff's counsel, it was adjourned to 06.06.2016. That day also P.W.1 was
present, but there was no representation for the plaintiff. Hence, the case
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A.S(MD)Nos.60 of 2018 and 107of 2017
was adjourned to 14.06.2016. On 14.06.2016 the plaintiff sought time to
cross D.W.1 and again the matter was adjourned to 22.06.2016. On
22.06.2016 though D.W.1 was present, the plaintiff was not present, there
was no representation for the plaintiff. Hence, the evidence of D.W.1 was
closed without any cross of D.W.1.
4.The learned Judge, without ascertaining whether the defendants
have any further evidence to be marshalled, has closed the trial and posted
the matter for arguments on 11.07.2016.
5.This Court, on verifying the records, found that the counsel for the
defendants has not closed the evidence on their side, however the Court has
adjourned the matter for arguments and thereafter, the matter is being
adjourned to 18.07.2016 then to 25.07.2016 and reserved for judgment.
6.From the “B” dairy extract, this Court finds neither of the plaintiff
side counsel nor the defendant side counsel argued the matter, in fact, the
learned Judge has recorded no representation, when the matter was posted
for arguments on 25.07.2016. Thereafter, the judgment has been pronounced
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A.S(MD)Nos.60 of 2018 and 107of 2017
on 04.08.2016. “B” diary extract which has been extracted above, clearly
indicates that the Court below has not given an opportunity to the parties
but closed the defendants side evidence for the reason plaintiff was not
represented by counsel on that day. Further, without affording opportunity
to argue the matter she has rendered the judgment.
7.It is stated across the bar that during the relevant point of time, the
Advocates of Karur were boycotting the Court and the parties were not
represented by their respective counsels. It is all the more reason for this
Court to set aside the judgment and decree of the Court below and remand
the matter back to the trial Court to afford an opportunity to the defendants
to complete the marshaling of witnesses on his side, with an opportunity to
the plaintiff to effectively cross-examine those witnesses including D.W.1.
Those exercise shall be completed by the Court below, preferably, on before
30.04.2023. The Registry is directed to send back the records forthwith.
8.In the result, these Appeal Suits are disposed of. No costs.
Consequently, connected miscellaneous petitions are closed.
https://www.mhc.tn.gov.in/judis
A.S(MD)Nos.60 of 2018 and 107of 2017
(G.J.,J.) (K.K.R.K.,J.)
02.03.2023
NCC:Yes/No
Index:Yes/No
Internet:Yes/No
To
1.The Principal District Judge,
Karur.
2.The Section Officer,
VR Section,
Madurai Bench of Madras
High Court,
Madurai.
DR. G.JAYACHANDRAN,J.
AND
K.K. RAMAKRISHNAN,J.
Ns
https://www.mhc.tn.gov.in/judis
A.S(MD)Nos.60 of 2018 and 107of 2017
A.S(MD)Nos.60 of 2018 and 107 of 2017
and
C.M.P(MD)Nos.3557 and 3558 of 2018
and
C.M.P(MD)No.6282 of 2018
02.03.2023
https://www.mhc.tn.gov.in/judis
