The plaintiffs in O.S.No.1726 of 2006 are the civil revision petitioners before this Court, challenging the common order passed in I.A.Nos.5944 and 5945 of 2013, dated 26.09.2013, on the file of the learned IInd Assistant Judge, City Civil Court, Chennai.
2. The case of the plaintiffs is that they have filed the suit for permanent injunction against the respondent herein. After the evidence was over, these petitioners/plaintiffs were filed two applications in I.A.No.5944 of 2013 filed under Order 18 Rule 17 of C.P.C. for re-open the case and I.A.No.5945 of 2013 for re-call the witness to be examined on the plaintiffs' side.
3. It is the case of the petitioners/plaintiffs is that when the 1st petitioner was examined as PW1 elaborate false complaint also made by the respondent/defendant's counsel, thereafter after evidence of the plaintiffs' side, the defendant also examined. The present suit in O.S.No.1726 of 2006 is connected with O.S.No.5792 of 2006, which is adjacent Vinayaga Lay out.
4. The petitioner also come forward by saying that certain confusions with the revenue records pertaining to the properties in the Bhuvaneswari lay out and Vinayaga lay out, the Revenue Officers like Tahsildar, Mambalam-Guindy Taluk and District Revenue Officer have to be examined to clarify the status of the above lay outs to bring the truth and prove the case on the plaintiffs' side. Therefore, they have filed the above two I.A.s for re-open the case and re-call the witnesses to be examined on the side of the plaintiffs.
5. On receipt of the notice in both the applications, the respondent has filed his counter denying the allegations set out in the petition and respondent stated that only to drag on the proceedings, these petitioners/plaintiffs have filed the above two applications to re- open the case and to re-call the witnesses viz., the revenue officials. Since the matter has been posted for arguments in the year 2013 and the matter is pending for long time only for the purpose of re-open the case and re-call the witnesses.
6. The respondent also states that the petitioners have filed their suit in O.S.No.1726 of 2006 against the respondent for permanent injunction. The petitioner has to prove the essential ingredients of Order 39 of C.P.C. to maintain their suit. For proving the ingredients of Order 39 of C.P.C. the examination of Tahsildar and other revenue officers are not necessary. Only in order to prolong the cases pending from the year 2006 also, the plaintiffs have filed the petition after petition on one pretext or other with the view to harass the respondent/defendant.
7. The respondent also states that the Hon'ble Supreme Court repeatedly held that the vexatious petitions are not entertained and the cases could be finished by the Subordinate Courts in time. In the instant case, the petitioners/plaintiffs have not come forward for finishing the case that too for an injunction suit pending from the year 2006 onwards i.e. for more than 7 years and even then, the petitioners/plaintiffs have require more time and this sort of practice should not be encouraged by the Court. Therefore, he prayed the learned IInd Judge, City Civil Court, Chennai to dismiss the application.
8. Considering both side arguments, the learned IInd Judge, City Civil Court, Chennai was dismissed both the applications in I.A.Nos.5945 and 5944 of 2013 in O.S.No.1726 of 2006, dated 26.09.2013, on the ground that the examination of the defendants' side evidence was also over and the suit was posted for arguments on several occasions. While the matter is pending for arguments that the petitioner/plaintiff has filed I.A.No.10762 of 2010 for re-open the plaintiff's side for examining and further witnesses which was allowed on 15.07.2010 on payment of cost and even thereafter there was no examination of fresh witness on the plaintiff's side.
9. The learned Judge also says that thereafter, the petitioners/plaintiffs have filed a petition in I.A.No.1132 of 2012 to re- open and to recall PW2 evidence which was allowed on 13.12.2012 and thereafter, the matter was posted for argument on several dates, at that stage, the present application in I.A.Nos.5944 and 5945 of 2013 were filed for re-open the case and to re-call the witnesses.
10. The learned Judge also states that the plaintiffs have not diligent in prosecuting the case, when the defendant's side evidence was closed in the year 2010 itself. These applications were filed belatedly, there is no reason for the delay in filing these two applications. The learned Judge also states that if there is any confusion in the revenue records, the plaintiffs can very well obtain certified copy of necessary revenue records from Taluk Office. But, without doing so and without filing any document along with the applications, it is not open to the petitioners/plaintiffs, now sought for to re-open the plaintiffs side evidence that too after three years, after closing of defendant's side evidence. Therefore, the learned Judge says that it was found that the petition has filed only with an intention to delay the proceedings. Challenging the same, these Civil Revision petitions have been filed.
11. I heard Mrs.P.T.Asha, learned counsel appearing for the petitioners and Mr.R.Thiagarajan, learned counsel appearing for the respondent in both the Civil Revision Petitions and perused the records.
12. It is the case of the petitioners/plaintiffs is that though the suit has been filed for bare injunction, but it was after evidence by both the parties, the plaintiffs have filed the two applications on two occasions for re-open and to re-call, which was allowed by the learned IInd Assistant Judge, City Civil Court, Chennai. But, even then the petitioners/plaintiffs have not examined the fresh witnesses.
13. Though the respondent has vehemently opposed for allowing the Civil Revision Petition, but they have contended that these petitioners were filed these two petitions only to drag on the proceedings for long time.
14. It is absolutely correct when the suit has been filed for permanent injunction, the Court must give fair opportunity to the petitioners/plaintiffs to prove their case before the trial Court. This Court and the Hon'ble Apex Court has categorically held that the Courts must have give fair opportunity to both sides and thereafter orders should be passed only based on that the justice should be delivered. When the matter has been posted for arguments in the year 2013 both the Courts as well as both the counsels were not attempting to dispose the suit by taking proper steps. Apart from this, these two applications were filed in the year 2013 and the same were dismissed on 26.09.2013. But, subsequently these two civil revision petitions were filed in the year 2013 and the same is pending for the past four years before this Court. Therefore, this Court having power to exercise the jurisdiction under the Article 227 of the Constitution of India to meet out the ends of justice and to correct any manifest error in the order passed by the Courts below.
15. This Court rendered a judgment in a case of R.Kalaiarasan
v. M.Lingam reported in 2010 (1) MWN (Civil) 730, it is stated as follows:
“10.During the course of arguments, Mr.P.Jagadeesan, learned counsel appearing for the respondent had produced a judgment rendered by this Court in P.Kalaiarasan v. M.Lingam and others reported in 2010-1-L.W. 370. In the said judgment it is stated as follows:
“16.That apart, the plaintiff's evidence was closed in March 2006 and I.A.Nos.13591 and 13592 of 2007 were filed in August 2007 and no reasons, much less, acceptable reasons were given by the respondents/defendants for filing the applications except saying that these applications are to be allowed in the interest of justice as they misplaced some records and some of the papers were destroyed. No reason whatsoever was given by the respondents/defendants for examining D.W.1, D.W.2 and D.W.3 before completing the cross examination of P.W.1. Further, when the suit was posted on 24.7.2007 for the arguments of the respondents/defendants, instead of arguing the matters, they successfully adjourned the matter on several occasions from 23.7.2007 to 17.8.2007 by filing a number of adjournment petitions. On 17.8.2007, there was no representation on behalf of the respondents/defendants and therefore, the suit was posted for judgment on 21.8.2007. It was only at that time the respondents/defendants suddenly realised that P.W.1 has not been effectively cross examined and this, in my opinion, is definitely for the purpose of further postponing the suit proceedings and I do not find any bonafide in those applications.
19. The Allahabad High Court, in the above judgment, observed that “the power under Order XVIII Rule 17 of C.P.C. can be exercised even at the stage of writing a judgment by the court, but, this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only.”
20. The Andhra Pradesh High Court went to the extent of observing that “no authoritative pronouncement has been brought to the notice of the court, wherein it is held that a witness could b e re-called by re-opening the suit after it was adjourned for passing judgment”.
21. I am concurring with the judgment of the Allahabad High Court that under Order XVIII Rule 17 C.P.C., re-examination of witness is possible even at the stage of writing a judgment, but the power should not be exercised lightly and it should be used in exceptional cases only.”
16. The said case is squarely applicable to this case, since this Court and the Hon'ble Allahabad and Andhra Pradesh High Courts very categorically held that “a witness could be recalled by reopening the suit after it was adjourned for passing Judgment. Therefore, it is my absolute view that Order 18 Rule 17 of CPC can be exercised even at the stage of writing a Judgment by the Court, but, this power should not be exercised lightly and the rule is that it should be used sparingly and in exceptional cases only.” This case is definitely exceptional case and one more opportunity to be given to the petitioners/plaintiffs by applying the Judgment of the Hon'ble Allahabad and the Andhra Pradesh High Courts.
17. Therefore, while the applications as well as the civil revision petitions are pending from the year 2013 onwards, by giving one more opportunity to the petitioners/plaintiffs within a stipulated period of time, no prejudice would be caused to the respondent/defendant. But, on the other way, it will give justice to both the parties.
18. Therefore, I am inclined to give one more opportunity to the petitioners/plaintiffs to put forth their case before the learned trial Judge, by allowing these two applications filed in I.A.Nos.5944 and 5945 of 2013. But, though the suit has been filed in the year 2006 and the evidence was over in the year 2010 and the same is pending for arguments from 2013 onwards and hence the petitioners/plaintiffs should compensate the respondent/defendant by way of cost.
19. In the result:
(a) both the Civil Revision Petitions are allowed, by setting aside the orders in I.A.Nos.5944 and 5945 of 2013 in O.S.No.1726 of 2006 respectively, dated 26.09.2013, on the file of the IInd Assistant Judge, City Civil Court, Chennai, on condition that the petitioner should pay a sum of Rs.50,000/- as cost to the learned counsel appearing for the respondent within a period of two weeks from the date of receipt of a copy of this order;
(b) the learned IInd Assistant Judge, City Civil Court, Chennai, is hereby directed to take up the suit on day to day basis, without giving any adjournment to either parties and to dispose of the suit within a period of 15 days from the date of receipt of a copy of this order. Both the parties are hereby directed to give their fullest co-operation for early disposal of the suit within the stipulated period of time as fixed by this Court;
(c) the learned IInd Assistant Judge, City Civil Court, Chennai, is hereby directed to complete the case and to pass orders thereby and to report before this Court on 18.08.2017. Consequently, connected miscellaneous petitions are closed.
Post on 18.08.2017 “for reporting compliance”.
03.03.2017 Note:Issue order copy on 20.07.2017. Internet:Yes Index:Yes vs To The II Assistant Judge, City Civil Court, Chennai.
M.V.MURALIDARAN, J.
vs CRP(PD)Nos.4464 and 4465 of 2013 and M.P.Nos.1 and 1 of 2013 03.03.2017