BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:05/08/2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH C.R.P.(PD)(MD) No.2234 of 2008 and C.R.P.(PD)(MD) No.2235 of 2008 and M.P.(MD) No.1 and 1of 2008 1.T.N.Rengarajan 2.Raja ... Petitioners in both C.R.Ps vs. Singaravelu ... Respondent in
both C.R.Ps
PRAYER in both C.R.Ps
Civil Revision Petitions filed under Article 227 of
Constitution of India, against the order dated 01.08.2008 in I.A. Nos.88 and 89
of 2007 in O.S. No.72 of 2006 on the file of District Munsif Court,
Thiruvaiyaru.
!For Petitioners
in both C.R.Ps … Mr.M.Thikvijayapandian
^For Respondent
in both C.R.Ps … Mr.V.K.Vijayaragavan
* * * * *
:COMMON ORDER
The revisions have been filed by the defendants in the suit challenging
the order passed in I.A. Nos.88 and 89 of 2008 in O.S. No.72 of 2006 on the file
of District Munsif Court, Thiruvaiyaru.
2. The petitioners herein are the defendants in the suit. The suit is
filed by the respondent seeking the relief of possession. The suit was filed in
the year 2006 and after examining the parties, the suit is posted for arguments.
At that point of time, applications were filed by the petitioners in I.A. Nos.88
and 89 seeking to recall and reopen the evidence of P.W.1 for the purpose of
marking the sale deed executed by the plaintiff. The said applications were
dismissed on the ground that the earlier three applications even though ordered
no such document was marked. Challenging the same the revisions have been
filed.
3. In the present case, it is borne by record that on earlier three
occasions the petitioners have filed the applications but they have failed to
avail the opportunities. The learned counsel for the petitioners submitted that
in view of the fact that the documents sought to be marked belongs to the
respondent/plaintiff, the petitioners could not get the said document and that
is the reason why they could not be marked on earlier occasions inspite of the
orders passed by the Hon’ble Court. It is further submitted that at present the
petitioners have got the document. The learned counsel for the petitioners
submitted that as much as the document has obtained and also in view of the fact
that in earlier occasions the applications having been allowed, the present
application ought not have dismissed only on the ground of delay.
4. The learned counsel has relied upon the judgment reported in AIR 1984
DELHI 439(Suresh Kumar Vs. Baldev Raj), to content that application under Order
18 Rule 17 can be filed at any stage. The learned counsel also relied upon the
recent judgment reported in 2009 (4) SCC 410 (Vadiraj Naggappa Vernekar (dead)
Vs. Sharadchandra Prabhakasr Gogate), to submit that when new evidence is
available and new facts are discovered subsequently the power under Order 18
Rule 17 can be exercised.
5. Per contra, the learned counsel for the respondent submitted that there
is absolutely no bona fides in the applications filed by the petitioners. Even
though sufficient opportunities were given earlier no document has been marked.
The learned counsel further relied upon the judgment reported in 2008 (2) MLJ
382 (V.Shanmugam Vs. S.Umamaheswaran), to submit that the power under Order 18
Rule 17 of Civil Procedure code should be used only in exceptional cases.
6. I have heard the arguments of the learned counsel for the petitioners
as well as the learned counsel for the respondent. It is no doubt true that the
power under Order 18 Rule 17 has to be exercised sparingly and that too in
exceptional cases. The said power cannot be used to fill up lacuna by a party
or to let in any evidence which was available earlier. In the judgment reported
in 2009 (4) SCC 410 (Vadiraj Naggappa Vernekar (dead) Vs. Sharadchandra
Prabhakasr Gogate), the Hon’ble Supreme Court was pleased to hold that even
though the said power has to be exercised sparingly the same can be exercised
when new material has been brought before the Court. The Hon’ble Supreme Court
has further held that if the Court decides that a particular fact is very much
necessary for deciding the suit, then the power can be exercised by the said
Court.
7. In the judgment reported in AIR 1984 DELHI 439(Suresh Kumar Vs. Baldev
Raj), the Hon’ble Delhi High Court has held that the power under Order 18 Rule
17 can be exercised at any stage. In the judgment reported in 2008 (2) MLJ 382
(V.Shanmugam Vs. S.Umamaheswaran), the Hon’ble High Court has held that the
power under Order 18 Rule 17 cannot be exercised as a moon shine on a flimsy or
irrational ground.
8. In the present case as admitted by the learned counsel for the
petitioners, the petitions have been filed to recall and reopen P.W.1 for the
purpose of marking a document. The document in question has been executed by
the plaintiff and therefore there is considerable force in the submission made
by the learned counsel for the petitioners that the petitioners could not get
the said copy when the earlier applications were filed. Moreover, the Court
below has not given any finding about the relevancy of the document sought to be
marked by recalling and reopening the evidence of P.W.1. This Court is also of
the opinion that in as much as the application having been allowed on earlier
occasion, the said fact alone would show that there is necessity for allowing
the application. However as observed by the trial Court and as contended by the
learned counsel for the respondent inspite of sufficient opportunities given the
petitioners have not made use of the same earlier. The case has been dragged on
at the insist of the petitioners even though this Court is of the opinion that
the delay alone cannot be a ground for dismissing an application under Order 18
Rule 17. Hence taking into consideration of the above said fact this Court is
of the opinion that the revision deserves to be allowed on condition the
petitioners pays a sum of Rs.3,000/- to the respondent within a period of two
weeks from the date of receipt of copy of this order. With this observation the
revisions are allowed.
9. Taking into consideration of the facts and circumstances of the cases,
the trial Court is directed to dispose of the suit within a period of three
months from the date of receipt of copy of this order. No costs. Consequently
the connected miscellaneous petition is closed.
cs
To
The District Munsif Court, Thiruvaiyaru.