Prayers:- Civil Revision Petitions are filed under Article 227 Constitution of India to set aside the fair and final order of the learned Additional District Munsif, Poonamallee made in I.A.Nos.977 and 978 of 2013 in O.S.Nos.446 of 2000 dated 19.09.2013.
2. The petitioner, in the present Revision Petitions is the 6th defendant in the suit. O.S.No.446 of 2000 was filed by the respondents 1 and 2 before the learned District Munsif, Poonamallee for the relief of declaration and possession of the properties described in the schedule to the plaint. P.W.1, Hemavathy was examined by the trial court and subsequently, I.A.No.978 of 2013 was filed by the respondents 1 and 2 to recall the witness. The reason set out in the accompanying affidavit filed in support of the said Interlocutory Application is that father of Hemavathy had executed a 'Will' on 9th March 1995 bequeathing 49 cents of land out of the total extent of One Acre and Fifty Cents situated in Irulapalayam Village. The contention was that the said 'Will' was mixed up with other papers and while searching the old papers, P.W.1, Hemavathy was able to trace out the said Will and therefore, the petition to recall the evidence of P.W.1 was filed to mark the said Will dated 9th March 1995, which is in favour of P.W.1.
3. The petitioner / 6th defendant objected the recalling of P.W.1, however, the trial court, considering the facts and circumstances allowed the Petition on 19th September 2013. Challenging the same, the present Revision Petitions are filed.
4. The learned counsel appearing for the petitioner contended that the trial court has not considered the fact that the alleged Will dated 19.03.1995 was now traced out by P.W.1 after a lapse of 16 years from the date of filing of the suit. Further, prior to the filing of the suit, the alleged Will was in possession of the plaintiffs and therefore there is a genuine doubt with regard to the existence of the said Will prior to the filing of the suit. That apart, in the plaint in Paragraph No.6, the plaintiffs have categorically stated that Mr.Kalyani, father of Hemavathy, died intestate on 25.08.1995 leaving behind his wife, namely, Kaliammal, 1st plaintiff and daughter, Mrs.Hemavathy, 2nd plaintiff. Such being the specific pleading set out in the plaint, now, the petition to recall P.W.1 for the purpose of filing the Will cannot be entertained and moreover the plaintiff has not filed any petition seeking amendment of plaint with regard to the specific averment that Mr.Kalyani died intestate on 25.08.1995.
5. The learned counsel appearing for the respondents 1 and 2 opposed the contentions of the learned counsel for the petitioner by stating that the respondents / plaintiffs were unable to produce the said Will either at the time of filing the written statement or at the time of examination of P.W.1. The said Will was traced out subsequently from the house of P.W.1, Hemavathy and therefore, the petition to recall the evidence was filed as soon as the respondents / plaintiffs found the Will. Subsequently after the examination of P.W.1, they have got a right to recall and mark the said Will, as document, to establish the right over the suit schedule properties. Hence the trial Court has not committed any error in allowing the petition to recall the evidence of P.W.1.
6. Considering the rival submissions made both by the learned counsel appearing for the petitioner and the respondents, this Court is able to appreciate the fact that recalling of the evidence has to be considered based on the facts and circumstances of each case and recall of evidence cannot be allowed in a routine manner.
7. It is worthwhile for this Court to make a reference to Order 18 Rule 17 of Code of Civil Procedure, which enumerates that the Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.
8. The Code of Procedure cited supra is clear that recalling of the evidence may be allowed by the Courts at any stage of the suit, that does not mean that each and every circumstance attributed by the parties are to be considered by the Courts. The necessity emanates to allow such petition should be met with by the trial court while allowing the petitions to recall the evidence, otherwise the parties will be filing petitions then and there, either to protract the issue or to delay the proceedings. Such attitude of the parties are to be considered by the trial court by allowing such petitions.
9. Besides this, the Court has to see the purpose for which the parties are filing such petition for recalling evidence and the genuineness thereon. If some genuine reason is submitted by either of the parties, then, the Court can allow the petitions, i.e., for recalling the evidences, so as to enable the respective parties to adduce evidence to strengthen their case or to establish certain facts regarding the issues set out in the plaint or in the written statement.
10. In the instant case on hand, the fact remains that the Will sought to be marked as Document by recalling P.W.1 is dated 09.03.1995 and the father of P.W.1, Hemavathy died on 25.08.1995. P.W.1 in her affidavit has stated that the Will was mixed up with the papers and the same can be traced out only in the year 2013. Such simple fact set out by the respondents / plaintiffs is unable to be appreciated and such facts are very hard to believe and further, no other cogent reasons are set out in the petition to establish that the Will was unable to be traced out for more than 18 years from the date of death of the father of P.W.1, Mr.Kalyani.
11. Apart from that, at the time of filing the plaint, the plaintiffs have categorically stated that Mr.Kalyani died intestate on 25.8.1995, such being the candid statement made out in the plaint, now, the parties cannot be allowed to say that a Will was found after a lapse of 18 years from the date of death of P.W.1's father. Such pleadings are not supported with cogent reasons and the supporting documents has to be reasonably doubted by the Courts. If the Court permitted such documents to be filed after lapse of 16 years from the date of filing of the Suit, it will create not only complications and it will be a hurdle to proceed with the suit one way or the other. Therefore, an inference to be drawn with regard to the conduct of the parties by arriving at a conclusion that such unregistered documents allegedly found out after lapse of 16 years need not be considered and the parties need not be allowed to recall the evidence on this ground.
12. No doubt, little prejudice will be caused by allowing this petition, but the point is different and causing hardship alone need not be a consideration while deciding such applications to recall the evidence. Veracity of the pleadings and the necessity for allowing such parties to adduce additional evidence also to be looked into by the trial court while allowing such petition.
13. The case on hand is a case where the genuineness of the Will itself seems to be doubtful and in the absence of any supporting documents and reasons, the parties need not be allowed to recall the evidences for the purpose of marking the Will, which was alleged to have been signed by the deceased on 09.03.1995. Therefore, the reasons and the findings given by the trial court for allowing the petitions are neither candid nor convincing. Hence this Court is inclined to consider the grounds of the present Civil Revision Petitions and accordingly, the Common Order passed by the trial court in I.A.Nos.977 and 978 of 2013 dated 19.09.2013 are set aside and the Civil Revision Petition Nos.910 and 911 of 2014 are allowed.
It is needless for this Court to state that the trial court has to proceed with the suit (without influenced by any of the observations made in the Civil Revision Petitions) as early as possible and dispose of the same in accordance with Law. No order as to costs. Consequently, M.P.No.1 of 2014 in C.R.P.(PD) No.910 of 2014 is closed.
22.02.2017 Index: Yes/No Internet: Yes/ No ssd To The learned Additional District Munsif, Poonamallee S.M.SUBRAMANIAM,J., ssd C.R.P(PD).No.910 of 2014 and M.P.No.1 of 2014 and C.R.P.(PD) No.911 of 2014 22.02.2017 http://www.judis.nic.in