The revision has been filed by the petitioner herein who is the 4th petitioner in I.A. No.180 of 2004 in S.O.P No.54 of 1999 on the file of the learned Principal Subordinate Judge, Thanjavur.
2. Respondents 7 to 13 are the legal-heirs of the 3rd respondent in the Succession Petition in S.O.P. No.54 of 1999 and the petitioner herein is the 4th petitioner in I.A. No.180 of 2004 and the 10th respondent in S.O.P. No.54 of 1999. In the said I.A. the deceased third respondent filed a memo stating that she has got no objection for giving her share to the petitioner. Thereafter, she died pending the proceeding. After her death, the respondents 7 to 13 filed an application to implead themselves as the legal representatives of the deceased third respondent. The said application was dismissed by the Court below and challenging the same, the revision was filed in C.R.P. No.786 of 2003, wherein this Court was pleased to implead the respondents 7 to 13 as respondents in the main petition.
3. In pursuant to the said order, the present application has been filed by the petitioner seeking to reopen the evidence of P.W.1 for the purpose of cross examining the said witness. The said application was dismissed by the Court below by holding that the Hon'ble High Court has ordered the impleadment only for the purpose of completion of the records. Further, the petitioner cannot be allowed to cross examine P.W.1 contrary to the stand taken by the third respondent. Therefore, the Court below has rejected the said application. Challenging the same, the revision has been filed.
4. The learned counsel for the petitioner submitted that the evidence of the plaintiff was closed after the impleadment and therefore interest of justice would require that they must be given an opportunity to cross examine P.W.1. According to the learned counsel, there should be full adjudication between the parties and therefore the order passed by the Court below will have to be set aside, since only in pursuant to the orders of the Hon'ble High Court they have come on record.
5. Per contra, the learned counsel for the respondents submitted that even on earlier occasion, the Hon'ble High Court in C.R.P.No.2185 of 2008 has given a specific direction for the disposal of the main case within a period of three months and inspite of the same, the present application has been filed without any bona fide intention. The learned counsel has also stated that a right accrued to a party cannot be taken away subsequently by the legal representatives of the other party who herself has given such a right in favour of the petitioner. The learned counsel submitted that in view of the specific memo filed by the third respondent while she was alive, the petitioner cannot be allowed to change, vary or dilute the same which is impermissible in law. The learned counsel further submitted that the petitioner has no independent right and he can only step into the shoes of the deceased third respondent. It is further submitted that a reading of the order passed by the Hon'ble High Court would clearly show that the impleadment has been ordered only for the purpose of completion of the records.
6. I have heard the arguments of the learned counsel for the petitioner as well as the respondents. In the present case on hand, the third respondent in S.O.P. No.54 of 1999 has filed a memo in support of the petitioner in the main petition. As rightly contended by the learned counsel for the respondents, a stand taken by a party while she was alive cannot be allowed to be changed, varied or modified to the detriment of the party in whose favour the said concession has been made. In the judgment reported in AIR (30) 1943 CALCUTTA 613 (Surendra Narain Sarbadhikari Vs. Bholanath Roy Chowdhury), it has been held that the legal representatives of the deceased defendant is bound to adopt the written statement of the latter and cannot at the appellate stage raise a new case which is inconsistent with the case of the deceased. Similarly in the judgment reported in AIR 1935 MADRAS 52 (Kizhiakalthil Puthan Veetil Thavazhi Karnavan Vs. Manikat Variath Ukkali Varissiar's son Sankunni and others), it has been held that a legal representative cannot vary or depart from the stand taken by his predecessor whom he represents. In the judgment reported in AIR 1978 MADRAS 294 (State Trading Corporation of India Ltd. Vs. K.V.Vaidyalingam and others), it has been held that when a legal representative is brought on record, his status and right is the same as that of the person died in whose place he has come on record. In the judgment reported in AIR 1998 RAJASTHAN 98 (Ramgopal and another Vs. Khivraj and others), the Rajasthan High Court has held that the status of a legal representative of the deceased defendant is in no way different from the defendant as he steps into shoes of the deceased defendant. Therefore this Court is of the opinion that the petitioner cannot be permitted to cross examine P.W.1 in so far as the contents of the memo filed by the third respondent is concerned. In the judgment reported in 2009 4 SCC 410 (Vadiraj Naggappa Vernekar (dead) through LRs. Vs. Sharadchandra Prabhakar Gogate), the Hon'ble Supreme Court has held that if a party seeks to introduce evidence by recalling witness, the same cannot be permitted.
7. Therefore, on a consideration of the above said facts and law this Court is of the opinion that the above revision filed by the petitioner is liable to be dismissed. Accordingly the same is dismissed.
8. However, it is also open to the petitioner to examine himself to give evidence under what circumstances the memo has been filed. It cannot be said that the petitioner is debarred from doing so. Hence with the above said observation, the revision is dismissed.
9. The learned counsel for the respondents submitted that in view of the pendency of the main petition from 1999, the same may be disposed of at an early date. Considering the said request the Court below is directed to dispose of the S.O.P. No.54 of 1999 within a period of four months from the date of receipt of copy of this order. It is also open to the petitioner to file appropriate application if so advised. No costs. Consequently the connected miscellaneous petition is closed.
cs To The Principal Subordinate Judge, Thanjavur.