IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.01.2009 Coram:
This civil revision petition is preferred against the order and decreetal order dated 16.06.2008 passed in Memo in O.S.No.89 of 2005 by the District Munsif at Uthankarai.
For Petitioner : Ms.K.Ambika O R D E R
Animadverting upon the order dated 16.06.2008 passed by the learned District Munsif at Uthankarai in Memo in O.S.No.89 of 2005, this civil revision petition is focussed.
2. Heard the learned counsel for the petitioner. Despite printing the name, neither the counsel nor the respondents appeared.
3. An epitome and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The first respondent/plaintiff filed the suit O.S.No.89 of 2005 seeking the following reliefs:
VERNACULAR ( TAMIL ) PORTION DELETED
4. The written statement was filed by the revision petitioner/first defendant. The trial commenced. During cross examination of P.W.1, the defendants got an answer as under:
VERNACULAR ( TAMIL ) PORTION DELETED However, the said agreement to sell was not produced before the Court by the first respondent/plaintiff, whereupon a memo was filed by the defendants so as to get direction from the Court as against the first respondent/plaintiff to produce the said agreement to sell. The counter was filed by the plaintiff to the effect that there was no agreement to sell at all, whereupon the Court dismissed the request of the petitioner in the memo to give direction to the plaintiff to produce the agreement to sell. Being aggrieved by and dissatisfied with the order of the lower Court, this revision is filed on various grounds.
5. A mere perusal of the counter filed by the plaintiff as against the memo was to the effect that the plaintiff as P.W.1 erroneously admitted as though there was an agreement to sell. The learned counsel for the revision petitioner placing reliance on the grounds of revision would develop his argument that the plaintiff after categorically and candidly admitted about the existence of the agreement to sell was not justified in filing the counter as though she erroneously without knowing the distinction between the sale deed and an agreement to sell deposed so.
6. In this factual matrix, I am of the considered opinion that additional evidence is required in this matter. In one breath, the plaintiff during cross examination stated that anterior to the sale deed there emerged an agreement to sell; however, when the defendants wanted that said agreement to sell to be produced before the Court, she in another breath turned turtle quite antithetical to what she committed herself in cross examination and simply took up the plea as though erroneously she deposed before the Court as though there was an agreement to sell, when infact there was none.
7. The learned counsel for the revision petitioner would correctly and convincingly argue that if parties are allowed to take such stand and wriggle out of their liability, then the Court process would be thwarted and set as nought. It is the specific case of the defendants that there was an agreement to sell. Certainly P.W.1's answer to that question during cross examination admitting such existence of sale deed is very much relevant and the defendants could rely upon it. It is for the defendants also to adduce evidence so as to prove the actual existence of agreement to sell, over and above what P.W.1 admitted during cross. While disposing of the case, it is for the trial Court to see as to whether the plaintiff deliberately refrained from producing the sale agreement after admitting during cross examination about such existence and it is also for the Court to scrutinise the evidence that would be adduced on the defendant's side. As such, cumulatively the evidence should be considered and the lower Court has to arrive at a conclusion.
Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
gms To District Munsif at Uthankarai