These civil revision petitions are filed against the order of dismissal dated 17.9.2008 made in IA.Nos.471 and 472 of 2008 in OS.No.269/2006 on the file of the Principal District Munsif, Padmanabhapuram in Kanyakumari District by the petitioner/plaintiff.
2. The petitioner/plaintiff has filed the above said suit against the respondent/defendant for partition and for separate possession of her share in the suit property and sought for the relief of interim injunction restraining the respondents from interfering with her possession in IA.No.553/2006.
3. Originally the suit property was in possession and enjoyment of one Natjimuthen, Ssharabudeen, Pasuldeen and Sirajudeen, who are the sons of Mohammed Sali. The said Najimutheen, Pasaldeen and Shabudeen executed three sale deeds in favour of the plaintiff in relation to their shares to a total extent of 112 . cents of the suit property. Whereas the respondent had purchased one of the shares of 37 . cents from one of the original owners and he is said to be in possession and enjoyment of the Northern portion of the suit property. The petitioner had filed an application in IA.No.553/2006 for the relief of interim injunction and after hearing both sides, the learned Principal District Munsif, Padmanabhapuram had directed both the parties not to alter the suit property in any manner and also restrained both the parties from cutting and removing the trees from the suit property and to maintain status quo till the disposal of the main suit.
4. In spite of the order passed by the court below, the respondent is said to have brought granite stones in the suit property for the purpose of putting up structure on 4.4.2008 and further in violation of the injunction order, on 8.4.2008, the respondent is said to have put up a basement construction with cement motor upto to the ground level, in order to put up a wall inside the suit property, which has been photographed by the petitioner. Even prior to that, the trial has commenced and the evidence on both sides have been recorded. In view of the subsequent events that had occurred on 4.4.2008 and 8.4.2008, the petitioner has filed applications in IA.Nos.471 and 472/2008 to reopen the case and to recall PW.1 and mark the document on the side of the plaintiff for the reasons stated in the affidavit filed in support of the said application, but the said applications were dismissed by the court below by the impugned order and hence, these civil revision petitions have been filed.
5. The learned counsel for the petitioner would contend with all vehemence and force that the court below failed to appreciate that the nature of the reopening application is necessitated only because of the subsequent events after completion of evidence in the suit. He would submit that the respondent in violation of the order passed by the court below put up the basement construction and thus committed contempt of court and in order to enlighten the court with the true position of the contemptuous act, the petitioner is required to let in evidence to prove the said act. Therefore, there is every justification for reopening the case to enable the petitioner to let in further evidence.
6. On the other hand, the learned counsel for the respondent would contend that separate possession of the respondent has been admitted by the petitioner and even assuming that there is a construction put up by the respondent, the said fact would not be of any help to the petitioner to prove his case. He would further submit that the said applications are filed only to protract the proceedings.
7. The learned counsel for the petitioner relied on the decision of this court rendered in the case of P.S.Pandian Vs. Anna Velanganni Films by its Partner and another [2002-3-LW-469], wherein it is held thus:- "The phrase "good cause" employed under Order XIII Rule 2, CPC, no doubt, requires adequate, sound and genuine reasons, but it depends upon the facts and circumstances of the individual case, as the good cause or sufficient cause as the case may, is intended only to ensure the bona fide of the parties who approach the court for production of the documents at a subsequent stage. Therefore, it is suffice for the court to find out whether the claim of a person who approaches the court for production of the documents at a subsequent stage, lacks bona fide or suffers from mala fide. In either case, the test to be adopted is whether the documents relied upon by the party are required to meet the ends of justice."
8. Per contra, the learned counsel for the respondent would contend that the power of the court is only discretionary and it ought to be exercised with greatest care that too only in exceptional circumstances and drew the attention of this court to the decision of this court rendered in the case of V.Shanmugam Vs. S.Umamaheswaran [2008-2-MLJ-382].
9. The rival contentions of both sides have been heard. It cannot be said that an opportunity to a party to recall any witness for the purpose of examination, cross-examination or re-examination is only governed by Order 18 Rule 17 of CPC. If circumstances warrant, an opportunity to a party to recall a witness for examining can be granted by a court in exercise of its inherent jurisdiction under Section 151 of CPC. Hearing of arguments in a suit is not a distinct stage of the hearing contemplated by the Code of Civil Procedure and it is a part of the hearing just as such as the recording of evidence. It follows that before arguments are concluded, the party is entitled to request the court to receive any oral or documentary evidence and it is left to the court in exercise of its jurisdiction to grant it or not.
10. There is no dispute that the respondent has put up some construction in the suit property after passing of the order of interim injunction by the court below not to alter the suit property in any manner. In this case, in view of the subsequent events that had occurred, the petitioner wants to let in evidence, which has not been taken into consideration by the court below. Valid reasons have been assigned by the petitioner to reopen the case and to recall PW.1 and mark the document on his side and to prove certain facts, which cannot be rejected on the mere ground that the entire evidence was already over. In order to give full opportunity to the parties to present their case and to enable the court to adjudicate properly, the court below ought to have allowed the petitions to reopen the case and recall PW.1 and mark the document on his side.
1.Taking into consideration the materials placed on record and the circumstances warrants this court to grant an opportunity to the petitioner to reopen the case and recall PW.1 and mark the document in relation to the subsequent events, the impugned order passed by the court below is liable to be set aside and accordingly is set aside.
2.
12. In the result, these civil revision petitions are allowed. No costs. Consequently, connected MP is closed.
Srcm To:
The Principal District Munsif, Padmanabhapuram, Kanyakumari