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K. Subramaniam vs S. Balashanmugam on 22 February, 2005

Madras High Court
K. Subramaniam vs S. Balashanmugam on 22 February, 2005
Equivalent citations: 2005 (2) CTC 112, (2005) 2 MLJ 147
Author: S Z Hussain
Bench: S S Hussain


ORDER

Sardar Zackria Hussain, J.

1. The revision petitioner is the defendant in O.S. No. 8 of 1998 on the file of the II Additional Sub Court, Coimbatore. The revision is filed against the dismissal of the petition in I.A. No. 295 of 2003 filed under Order 18 Rule 17 C.P.C. in I.A. No. 1516 of 1999 in the above suit.

2. The petition I.A. No. 295 of 2003 was filed to recall the defendant examined as R.W.1 in I.A. No. 1516 of 1999 for further examination.

3. One Swami Subramania Chetty filed the suit O.S. No. 8 of 1998 in forma pauperies for declaration and possession in respect of ‘B’ schedule property described in the schedule to the plaint; for past damages of Rs.7,500/- and for future damages. The suit was filed on 11.10.1993. In the plaint it is stated that the plaintiff Swami Subramania Chetty by doing business in Bombay earned and on his return to Coimbatore, he purchased his ancestral property at Rangai Gounder Street sold to third party and he also purchased a vacant site in Mettupalayam Road, Coimbatore in 1932 and constructed two houses in the vacant site described in schedule ‘A’ bearing door Nos.357 and 358(New Door Nos.994 and 995 respectively). Door No. 357 is ‘B’ schedule and the Door No. 358 is ‘C’ schedule property. The ancestral property purchased by the plaintiff was sold in 1951 and purchased by one Nagappan Chettiar which is described in the schedule ‘D’. Since the plaintiff was unmarried, he executed settlement deed on 11.3.1935 settling the property bearing door Nos.357 and 358 in favour of his sister Somu Ammal giving life estate and on her death to her sons to be born and the remainder to her male grandchildren and if no male children is born, the property shall go to the plaintiff. The defendant is the son of Somu Ammal who was born subsequently. Despite the execution of settlement deed, the plaintiff continued to be in possession and enjoyment of the properties, viz., door Nos.357 and 358. The suit O.S. No. 33 of 1957 filed by the plaintiff for declaration of title and confirmation of possession that the settlement was not acted upon, was dismissed on 30.11.1958 after contest. But the plaintiff continued to be in possession of the suit properties. The plaintiff also filed suit O.S. No. 95 of 1957 in respect of ‘D’ schedule property against his sister’s daughter Subbulakshmi, who purchased the same from the widows of Nagappa Chettiar in 1955, for declaration and the suit was also dismissed on 28.5.1958, because the widows were alive and certain issues were left open. The plaintiff was taking steps to file appeals against the dismissal of both the suits and in the meantime an arrangement was made between Somu Ammal and her daughter Subbulakshmi with the plaintiff, as per the same, the plaintiff agreed that he did not file appeals against the dismissal of suit O.S. No. 95 of 1957 and that the plaintiff should continue to own and enjoy door Nos.357 and 358. The defendant, who is the son of Somu Ammal, is creating litigation with the plaintiff that he is in possession of ‘B’ schedule property on the death of her mother Somu Ammal stating that he is residing there. According to the plaintiff, the defendant is only a trespasser.

4. The suit was resisted by the defendant by filing written statement.

5. During the pendency of the suit, the plaintiff Swami Subramania Chetty died on 11.1.1999 and the respondent herein filed I.A. No. 1516 of 1999 on 15.3.1999 claiming that he is the son and only legal heir of his father Swami Subramania Chetty and his mother having predeceased his father and further stating that Swami Subramania Chetty executed a registered Will dated 23.5.1988 and therefore, he is to be impleaded as the second plaintiff in the suit and it is contested by filing counter by the revision petitioner, who is the defendant in that suit.

6. It appears, in the petition I.A. No. 1516 of 1999, the respondent in that petition, viz., the defendant was examined as R.W.1 and he filed I.A. No. 295 of 2003 to recall him for the purpose of producing documentary evidence being Court records. The petition I.A. No. 295 of 2003 after contest was dismissed on the ground that no details have been furnished in the petition as to what are the documents which have been obtained by the revision petitioner for the purpose of marking in the said petition and that the said documents have not also been filed. The order is under challenge in this revision petition.

7. The learned counsel for the revision petitioner/defendant contended that in respect of the enquiry in I.A. No. 295 of 2003, he was examined as R.W.1 and besides R.W.2 and one more witness is to be examined as R.W.3 and as such, the evidence on the side of the revision petitioner/defendant is not over and he filed the petition I.A. No. 295 of 2003 to recall him for the purpose of marking the following documents, viz.,

(1) certified copy of judgment dated 29.11.1958 in O.S. No. 33 of 1957 on the file of the Sub Court, Coimbatore,

(2) certified copy of decree dated 29.11.1958 in O.S. No. 33 of 1957 on the file of the Sub Court, Coimbatore,

(3) certified copy of judgment in O.S. No. 95 of 1957 on the file of the Sub court, Coimbatore,

(4) certified copy of the fair order in O.P. No. 416 of 1993 on the file of the Sub Court, Coimbatore and

(5) certified copy of Suit register extract in O.S. No. 50 of 1995 on the file of the District Munsif Court, Coimbatore.

According to the learned counsel for the revision petitioner/defendant, the above said documents being the public documents and being judgments, decrees, fair order, and suit register extract in the prior litigation between the parties and being secondary evidence, are admissible and therefore, opportunity is to be given to the defendant to recall him and mark the said documents in I.A. No. 1516 of 1999, which has been filed by the respondent herein, the legal heir of Swami Subramania Chetty, who filed the suit O.S. No. 8 of 1998.

8. The learned counsel for the respondent/proposed second plaintiff argued that previously the defendant filed C.R.P. No. 1135 of 2003 against the dismissal of I.A. No. 295 of 2003 in I.A. No. 1516 of 1999 in O.S. No. 8 of 1998 and the revision was dismissed as per order dated 28.7.2003 as not maintainable under Section 115 of C.P.C., since interlocutory order was challenged in that revision and further it is stated that Order 18 Rule 17-A of Civil Procedure Code have now been omitted in the amended C.P.C. The learned counsel further submitted that the respondent herein was already added as a legal representative of the deceased Swami Subramania Chetty in the prior proceedings between him and Somu Ammal, that in Civil Appeal No. 1347 of 1986 filed in the Supreme Court by Somu Ammal against her brother Swami Subramania Chetty, the respondent herein, viz., proposed second plaintiff was brought on record as legal representative of the deceased Swami Subramania Chetty. In this regard, the learned counsel further submitted that previously the proposed second plaintiff was recognised as son and legal representative of the deceased Swami Subramania Chetty in I.A. No. 1601 of 2001 in O.S. No. 274 of 1989 on the file of the II Additional Sub Court, Coimbatore as per order dated 19.12.2001. After elaborate enquiry and the evidence let in through the respondent herein as R.W.1, one Sudharsan as R.W.2 and Exs.R-1 to R-19 marked on the side of the respondent herein, the respondent herein was recognised as son and legal representative of the deceased Swami Subramania Chetty. The said petition I.A. No. 1601 of 2001 in O.S. No. 274 of 1989 was filed as per the direction of this Court in A.S.SR. No. 62432 of 1997 and pursuant to such direction, the appeals pending in Supreme Court were also adjourned and the proposed second plaintiff also filed petition in the High Court and in the Supreme Court for impleading himself as the legal representative of the deceased father Swami Subramania Chetty. On the basis of the order of the trial Court in I.A. No. 1601 of 2001, the proposed second plaintiff was added as legal representative of the deceased Swami Subramania Chetty in the Supreme Court in I.A.Nos.3, 5, 6 and 7 in Civil Appeal No. 1116 of 1998. The learned counsel further argued that the revision now filed under Article 227 of the Constitution of India, is not maintainable. The learned counsel relied on the decision in Mohd. Yunus – v. – Mohd. Mustaquim and others , wherein the Apex Court has ruled in paragraph 7 thus:-

“The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority,” and not to correct an error apparent on the face of the record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227 the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based on to correct errors of law in the decision.”

9. The learned counsel for the revision petitioner/defendant relied on the decision in George Thomas v. Smt. Srividya , in which a Division Bench of this Court has held in paragraph 28 thus:-

“Of course, Order XVIII, Rule 17 of C.P.C. empowers the Court to recall any witness who has been examined and may put questions to him as the Court thinks fit. Such witnesses are amenable for cross-examination with the leave of the Court as contemplated under Section 165 of the Evidence Act. Those provisions relate to the suo-motu power of the Court in either recalling the witnesses or directing the production of any document or the thing and further empowering the parties to cross-examine any witness so recalled with the leave of the Court. However, in the case on hand, an application for recalling of witnesses was filed under Order XIV Rule 8 of the Original Side Rules read with Order XVIII, Rule 3 of C.P.C. and the same was allowed by the Court. The provisions of Order XVIII, Rule 17 and Section 165 of the Evidence Act are not applicable to the facts of the present case and consequently the reliance placed on the above provisions cannot be accepted.”

The learned counsel for the revision petitioner/defendant also argued that the proposed second plaintiff, the legal representative of the deceased Swami Subramania Chetty was added in the Supreme Court only in respect of that appeal, viz., Civil Appeal No. 1347 of 1986 as per order dated 28.10.1999.

10. As regards the contention put-forth for the revision petitioner/defendant that the proposed second plaintiff was recognised or added as legal representative of the deceased Swami Subramania Chetty only in the appeal before the Supreme Court, is without any force. The said appeal was filed by the defendant’s mother Somu Ammal and this Court in the appeal filed against the suit to cancel the settlement deed executed by Swami Subramania Chetty in favour of his sister Somu Ammal, declared that half of the property will remain with the appellant in that appeal, viz., with Somu Ammal and the remaining half will remain with Swami Subramania Chetty. During the pendency of the said appeal Swami Subramania Chetty died and the legal representative, the proposed second plaintiff was brought on record as his legal representative for the purpose of the said appeal on the application filed to bring him as legal representative in that appeal.

11. The revision filed in C.R.P. No. 1135 of 2003 against the dismissal of I.A. No. 295 of 2003 in I.A. No. 1516 of 1999 in O.S. No. 8 of 1998, which is also subject matter of this revision, was dismissed as per order dated 28.7.2003 as not maintainable under Section 115 of C.P.C., in that interlocutory order was challenged in that revision and since Order 18 Rule 17-A of C.P.C. have now been omitted in the amended C.P.C. Now this revision is filed under Article 227 of Constitution of India, which is also not maintainable, in that there is no error of law much less an error apparent on the face of record and correct procedure has been adopted by the trial Court in dismissing the petition, the order of which is challenged in this revision.

12. Even on merits, the revision petitioner has no case, in view of the fact, only pursuant to the direction issued by this Court in A.S.SR. No. 62432 of 1997, after elaborate enquiry and considering the evidence let in through the respondent herein as R.W.1 and another witness as R.W.2 and also Exs.R-1 to R-19, order was passed recognising the respondent herein as son and legal representative of the deceased Swami Subramania Chetty. Accordingly, as per order made in I.A. No. 1601 of 2001, as per which the proposed second plaintiff was added as legal representative of the deceased Swami Subramani Chetty, he has also been added as such in the Supreme Court in I.A.Nos.3, 5, 6 and 7 in Civil Appeal No. 1116 of 1998.

13. Therefore, the argument advanced for the revision petitioner/defendant that only for the purpose of the appeal before the Supreme Court, the proposed second plaintiff was brought on record as the legal representative of Swami Subramania Chetty, is not acceptable inasmuch as the revision petitioner was examined as R.W.1 and after examination of R.W.2 and one more witness is to be examined in respect of the enquiry in I.A. No. 1516 of 1999, the petition I.A. No. 295 of 2003 was filed to recall the revision petitioner for the purpose of marking documents as set out above. Though such documents admissible in evidence as secondary evidence, inasmuch as no purpose will be served in marking the said documents and since no explanation was given by the revision petitioner/defendant for not marking the said documents when he was examined, the trial Court considering all these aspects and in view of the fact, the respondent herein has already been recognised as son and legal representative of the deceased Swami Subramania Chetty in I.A. No. 1601 of 2001 after an elaborate enquiry, rightly dismissed the petition I.A. No. 295 of 2003 filed to recall the revision petitioner for the purpose of marking the said documents. There is no force to interfere with such order.

14. It appears, the parties are at loggerheads and are fighting tooth and nail right from the year 1957 onwards in respect of the settlement deed dated 11.3.1935 executed by the deceased Swami Subramania Chetty, who originally filed the suit O.S. No. 8 of 1998 in favour of his sister Somu Ammal, the mother of the revision petitioner and despite the fact it was decided by this Court in the appeal filed against the suit to cancel the settlement deed. It was declared by this Court that half of the property will remain with the appellant, viz., with Somu Ammal and the remaining half will remain with Swami Subramania Chetty.

15. The litigation is being protracted by filing petitions one after another and especially when the respondent herein, who was recognised as the son of the deceased Swami Subramania Chetty, after elaborate enquiry as set out above in I.A. No. 1601 of 2001 as per the direction of this Court. Therefore, there are no merits to interfere with the order of the trial Court, subject matter of this revision, as per which, the petition to recall the revision petitioner to examine as R.W.1 for the purpose of marking documents referred to above and to the effect that the respondent is not the son and legal representative of the deceased Swami Subramania Chetty, was dismissed, in that the respondent has already been declared and recognised as son and legal representative of the deceased Swami Subramania Chetty. The revision petition deserves no merit.

16. In the result, the revision petition fails and the same is dismissed. No costs. Consequently, the petition C.M.P. No. 20220 of 2003 and V.C.M.P. No. 3647 of 2004 are closed.

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