in both the C.R.Ps.
Prayer in both the C.R.Ps.: Civil Revision Petitions filed under
Article 227 of the Constitution of India, against the fair and decretal order dated 05.11.2013, made in I.A.Nos.188 and 189 of 2013 in O.S.No.29 of 2012 on the file of the III Additional District & Sessions Court, Tirunelveli.
These Civil Revision Petitions have been filed against the fair and decreetal order dated 05.11.2013, made in I.A.Nos.188 and 189 of 2013 in O.S.No.29 of 2012 on the file of the III Additional District and Sessions Court, Tirunelveli.
2. Since the issues involved in both the Civil Revision Petitions are one and the same, they are heard together and disposed of by this common order.
3. The petitioners are the plaintiffs and the respondents are the defendants in the suit in O.S.No.29 of 2012 on the file of the III Additional District and Sessions Court, Tirunelveli. The petitioners filed the suit for specific performance. The respondents filed their written statements and are contesting the suit. Trial commenced. The evidence on behalf of the petitioners and the respondents were closed and the suit was posted for arguments. At that stage, the petitioners have filed I.A.Nos.188 and 189 of 2013 to re-open the case and for permission to re-examine the Official of H.D.F.C. Bank, Vannarpettai, Tirunelveli and to mark the documents through him.
4. According to the petitioners, they filed the suit for specific performance. They issued 5 current-date cheques on 02.11.2009. In the written statement and deposition, the respondents denied that the petitioners issued 5 current-date cheques in a single day, i.e., on 02.11.2009. According to the petitioners, the contention of the respondents that the petitioners issued post-dated cheques is not correct. In order to prove that the petitioners issued only current-date cheques and to mark the cheques through the Bank Official, the petitioners have filed the above two applications.
5. The respondents 1, 5 and 6 did not file counter.
6. The respondents 2, 3 and 4 filed counter affidavit and denied the averments made in the affidavit. They stated that only to drag on the proceedings, the petitioners have come out with the present applications. P.W.1 already filed Bank statement and it has been received by the Court, but it was not marked. Without marking the said statement, it is not necessary to summon the Bank official for marking the documents and prayed for dismissal of both the applications.
7. The learned III Additional District and Sessions Judge considering the averments made in the affidavit and the counter affidavit and also considering the materials available on record, dismissed both the applications, by common order dated 05.11.2013. The learned III Additional District and Sessions Judge considered the contention of the second respondent that from the account statement, it cannot be found that Cheque Nos.0263765 to 0263768 have been issued in the name of the second respondent ? T.Usain Kaja on 02.11.2009, 02.11.2009, 03.11.2009, 04.11.2009 and 06.11.2009 and on perusal of the account statement filed by the petitioners, it is seen that the above cheques were issued for Rs.4,00,000/- each. The learned III Additional District and Sessions Judge has held that when the respondents accept the transaction as found in the account statement, it is not necessary to re-open for the purpose of summoning the Official of the Bank to give evidence regarding these cheques. Even the Banker will not be in a position to know when the cheques were issued, but will be knowing only when it is presented for collection.
8. Against the said order of dismissal dated 05.11.2013, the petitioners have come with out with the present Civil Revision Petitions.
9. The learned counsel for the petitioners submitted that in order to prove the date of issuance of cheques, the Bank official need not be examined. The learned III Additional District and Sessions Judge failed to consider that the petitioners have given the cheques by mentioning the specific date, but the same were presented for collection by the second respondent on later date. Hence, the date mentioned in the cheques can be proved only by examining the Bank official. The learned III Additional District and Sessions Judge ought to have allowed the applications and re- opened the case for the purpose of examining the Bank official.
10. The learned counsel for the respondents reiterated the contentions made in the counter affidavit filed before the lower Court and prayed for dismissal of the Civil Revision Petition.
11. I have heard the learned counsel appearing for the parties and perused materials available on record.
12. The petitioners have filed the suit for specific performance of agreement of sale, dated 16.10.2009. According to the petitioners, they have paid total sum of Rs.58,25,000/- and was always ready and willing to pay the balance sale consideration and get the sale deed executed in their favour. The second respondent as Power Agent of the first respondent failed to receive the balance sale consideration and execute the sale deed. Hence, they filed the suit. The second respondent denied the various allegations made by the petitioners. According to the second respondent, the petitioners were not having money to pay the balance sale consideration and value of stamp duty. In the circumstances, the sale agreement was cancelled. Further, the second respondent contended that the petitioners issued post- dated cheques, as they were not having money, the date on which, they issued the cheques.
13. The first petitioner examined himself as P.W.1 and after cross- examination, the evidence was closed. The respondents let in evidence and the suit was posted for arguments. At that time, the petitioners filed I.A.Nos.188 and 189 of 2013 to re-open the case and for permission to examine the Official of H.D.F.C. Bank, Vannarpettai, Tirunelveli, to prove the same, he issued current-dated cheques and not post-dated cheques. The learned III Additional District and Sessions Judge dismissed the applications holding that by examination of official of the Bank, it cannot be proved as and when the petitioners issued the cheques. The Officer can only speak about the date of presentation of the cheques for collection. The reasoning of the learned III Additional District and Sessions Judge, is valid and she has exercised her power conferred on her properly and there is no infirmity or irregularity in the said order warranting interference by this Court.
14. In the result, both the Civil Revision Petitions are dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To The III Additional District & Sessions Judge, Tirunelveli..