Madras High Court
S.M.Mariyam Aysha Umma vs Mr.Ashok Kumar on 24 February, 2025
Author: Anita Sumanth
Bench: Anita Sumanth
OSA.Nos.209, 199, 201, 206, 204, 211, 200, 210, 207, 205, 208 & 202 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.02.2025
PRONOUNCED ON : 24.02.2025
CORAM
THE HONOURABLE Dr.JUSTICE ANITA SUMANTH
and
THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN
Original Side Appeal Nos.209, 199, 201, 206, 204, 211, 200,
210, 207, 205, 208 & 202 of 2024
and CMP No.23377 of 2024
1.S.M.Mariyam Aysha Umma
2.S.M.D.Mohamed Abdul Khader
3.Mohamed Noori
... Appellants in all OSAs.
-Versus-
1. Mr.Ashok Kumar
2. Mrs.R.Rohini Mala
... Respondents in all OSAs.
Original Side Appeals filed under Order XXXVI Rule 1 of the Original
Side Rules read with Clause 15 of the Letters Patent Act, praying to set aside
the order of this Court passed in A.Nos.2566, 2588, 2591, 2569, 2589, 2585,
2592, 2577, 2573, 2581, 2590 & 2575 of 2024 respectively in C.S.No.545 of
2016 dated 14.06.2024 and allow this Appeal.
For Appellants
1/8
https://www.mhc.tn.gov.in/judis
OSA.Nos.209, 199, 201, 206, 204, 211, 200, 210, 207, 205, 208 & 202 of 2024
in all OSAs. : Mr.A.Sirajudeen
Senior Counsel
for Mr.A.Mohamed Ismail
For Respondents
in all OSAs. : Mr.J.Antony Jesus for R2
Not ready in Notice for R1
*****
COMMON JUDGMENT
(Judgment of the Court was delivered by C.KUMARAPPAN, J.)
The appellants are the applicants/plaintiffs and the respondents are the
respondents/defendants before the learned Single Judge.
2. The instant Original Side Appeals have arisen against the order
passed in various applications praying to issue summons to numerous
witnesses and to reopen the evidence of the plaintiffs.
3. The brief facts, which are necessary for disposal of these Original
Side Appeals are as follows:-
(a). These appellants have filed a civil suit for declaration and
mandatory injunction. In the said suit, the 2nd plaintiff was
examined as PW1 and the plaintiff's evidence was closed on
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OSA.Nos.209, 199, 201, 206, 204, 211, 200, 210, 207, 205, 208 & 202 of 2024
05.04.2023. Thereafter, on behalf of the defendants, the 2nd
defendant was examined as DW1 and the defence side evidence
was closed on 12.02.2024. When the case was posted for
arguments, the applicants came up with applications to reopen
and issue summons to witnesses, on the ground that the
examination of these witnesses are very much necessary to
substantiate his case.
(b). The said applications were stoutly resisted by the
respondents on the ground of delay and it was pleaded that the
suit was instituted as early as on 14.07.2016 and PW1
examination began on 17.11.2021 and was over by 04.07.2022.
Thereafter, PW2 was examined and his evidence was completed
on 11.10.2022. Similarly, PW3's evidence was over by
23.03.2023. After which, the plaintiffs' side evidence was
closed. On behalf of the defendants, DW1 was examined on
31.07.2023 and she was cross examined on 17.10.2023,
30.10.2023 and 12.01.2024. After the closure of the defendants'
side evidence, the suit was posted for arguments on 10.04.2024,
22.04.2024 and again on 05.06.2024. The defendants would
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OSA.Nos.209, 199, 201, 206, 204, 211, 200, 210, 207, 205, 208 & 202 of 2024
submit that only under this circumstances, these applications
were filed to prolong and delay the litigation. Hence, prayed to
dismiss the applications.
4. The learned Single Judge, after elaborately considering the
submissions of either side, has dismissed those applications on the ground
that the plaintiffs cannot expect the defendants to lead evidence for the
plaintiffs, that too when the plaintiffs' case rest upon the ground of coercion.
In such view of the matter, ultimately dismissed the applications.
5. We have heard Mr.A.Sirajudeen, learned Senior Counsel appearing
on behalf of Mr.A.Mohamed Ismail, learned counsel for the appellants and
Mr.J.Antony Jesus, learned counsel appearing for the 2nd respondent.
6. The learned Senior Counsel appearing on behalf of the appellants
would vehemently contend that there would not be any hardship to the
defendants in examining these witnesses. He would also contend that in as
many as 11 witnesses, some of them may be dispensed with and prayed to
allow in respect of the other witnesses. He would submit that the examination
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OSA.Nos.209, 199, 201, 206, 204, 211, 200, 210, 207, 205, 208 & 202 of 2024
of those witnesses are vital to prove his case.
7. Per contra, the learned counsel appearing for the 2nd respondent
would reiterate the submissions made before the learned Single Judge and
prayed to dismiss the applications.
8. We have given our anxious consideration to either side submissions.
9. As rightly found by the learned Single Judge, the plaintiffs cannot
expect the defendants to lead evidence in support of his case. It is a
primordial and inseparable duty of the plaintiffs to prove their case, and it is
equally pertinent to refer that the plaintiffs cannot construe the weakness of
the other side as a proof. In the instant case, the wholesome reading of the
petitioners' affidavit would reflect their prognosis on the defendants'
testimony and would state, since the defendants did not lead evidence as they
expected, it was necessitated for them to summon the petition mentioned
witnesses. Such contention would on the face of it, be egregious and
manifest on their attempt to delay the trial proceedings. As elaborately
observed by the learned Single Judge, merely because the 2nd defendant has
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OSA.Nos.209, 199, 201, 206, 204, 211, 200, 210, 207, 205, 208 & 202 of 2024
pleaded ignorance and the answers given by the 2nd defendant in the witness
box are not to the satisfaction of the plaintiffs, the same would in no way
entail the plaintiffs to take out the subject applications.
10. At this juncture, it is appropriate to refer and rely upon the
judgment of the Hon'ble Supreme Court in K.K.Velusamy Vs. N.Palanisamy
reported in (2011) 11 SCC 275, wherein the Hon'ble Supreme Court after
elaborately analyzing various precedents, ultimately held that when the
reopen application is found to be mischievous or frivolous, or filed to cover
up negligence or lacunae, then the same has to be rejected with heavy costs.
Here, the negligence on the part of the appellants is covertly and overtly
manifested from their affidavit, as they did not attempt to let in evidence at
the first instance. As such, these applications could only be termed as
applications filed to fill up the lacunae. Furthermore, the issuance of
summons to various Government authorities for the sake of proving the
absence of source of the defendants, as rightly observed by the learned Single
Judge is far fetched. The learned Single Judge while rejecting those
applications has elaborately gone into the material particulars has given valid
reasons. We are in full agreement with the reasoning given by the learned
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OSA.Nos.209, 199, 201, 206, 204, 211, 200, 210, 207, 205, 208 & 202 of 2024
Single Judge. Here, the appellant could not make out any case for
interference in the well reasoned order of the learned Single Judge.
Accordingly, the present Appeals are devoid of merits and liable to be
dismissed.
11. In the result, these Original Side Appeals stand dismissed. There
shall be no order as to costs. Consequently, connected CMP is also closed.
(Dr.ANITA SUMANTH, J .) (C.KUMARAPPAN, J.)
24.02.2025
kmi
Index : Yes/No
Internet : Yes /No
Neutral Citation : Yes/No
Speaking order/Non speaking order
To
The Section Officer,
Original Side,
High Court of Madras
https://www.mhc.tn.gov.in/judis
OSA.Nos.209, 199, 201, 206, 204, 211, 200, 210, 207, 205, 208 & 202 of 2024
Dr.ANITA SUMANTH, J.
and
C.KUMARAPPAN, J.
kmi
Original Side Appeal Nos.209, 199, 201, 206,
204, 211, 200, 210, 207, 205, 208 & 202 of 2024
24.02.2025
https://www.mhc.tn.gov.in/judis
