C.R.Ps (Respondents 2 to 13 are not necessary parties, they may be given up) PRAYER C.R.P.(PD) (MD) No.1433 of 2017: Civil Revision Petition is filed, under Article 227 of the Constitution of India, to call for the records in respect of the fair and decreetal order passed in I.A.No.424 of 2016 in O.S.No.358 of 2012, dated 04.11.2016, on the file of the learned I Additional District Munsif, Kuzhithurai, dated 15.04.2016 and set aside the same.
PRAYER C.R.P.(PD) (MD) No.1434 of 2017: Civil Revision Petition is filed, under
Article 227 of the Constitution of India, to call for the records in respect of the fair and decreetal order passed in I.A.No.425 of 2016 in O.S.No.358 of 2012, dated 04.11.2016, on the file of the learned I Additional District Munsif, Kuzhithurai, dated 15.04.2016 and set aside the same.
The civil revision petitions have been preferred against the fair and decreecal orders passed by the Court below, dated 04.11.2016, in I.A.Nos.424 and 425 of 2016, preferred by the plaintiff / first respondent seeking to re- open the case and to scrap the evidence of D.W.3.
2. Resisting the case of the plaintiff, it is found that the defendants have projected a Will said to have been executed by one Simpson. It is also found that the defendants had examined one of the attestors of the said Will as D.W.3 and inasmuch the defendants had chosen to examine the other attestor also, it is found that the cross-examination of D.W.3 by the plaintiff was deferred on the ground that the cross-examination would be taken up along with the cross-examination of the other attesting witnesses, who is intended to be examined by the defendants at a later point of time. It is found that thereafter, the defendants for one reason or the other could not examine the other attesting witnesses. It is also found that despite several opportunities given to the defendants to summon the attestor examined as D.W.3 for the cross-examination by the plaintiff, they had not chosen to take adequate steps in the manner known to law. Thereafter, it is found that at one point of time, the defendants had closed their evidence without taking any endeavour as such to summon D.W.3 for the cross-examination by the plaintiff.
3. At that stage of the matter, the plaintiff had chosen to file the above two applications, seeking the reliefs as stated above.
4. The Court below, on a consideration of the materials placed, accepting and also finding that the defendants have not endeavoured to summon D.W.3 for the cross-examination by the plaintiff, accordingly, scrapped the evidence of D.W.3. Challenging the same the revision petitioner is before this Court.
5. As rightly found by the Court below, the defendants having chosen to examine D.W.3 in support of their defence and the Court having deferred the cross-examination of D.W.3 by the plaintiff for the present, it is found that it is only the defendants, who have to take all the endeavours for the cross- examination of D.W.3 by the plaintiff and the defendants could not remain as silent spectators. Thereafter, it is found that the defendants had closed their evidence without taking adequate steps to produce D.W.3 for the cross- examination by the plaintiff. Therefore, it is found that as rightly held by the Court below, the defendants cannot be allowed to rely upon the unchallenged evidence of D.W.3, particularly when they have not taken steps to summon him for the cross-examination by the plaintiff.
6. In support of his contentions, the learned counsel for the revision petitioner placed reliance upon the decisions reported in AIR 1981 PUNJAB & HARYANA 157 [Om Parkash vs. Sarupa and others], AIR 1999 RAJASTHAN 357 [Suresh Nath Modi v. LR's of Jorawarmal], and AIR 2010 SUPREME COURT 2733 [Amrit Lal Kapoor and another v. Kusum Lata Kapoor and others]. However, on a perusal of the above cited decisions, it is found that the above cited decisions are not applicable to the case at hand, therefore it is found that the above said decisions would not in any manner advance the case of the plaintiff.
7. In view of the above reasons, I do not find any error or infirmity in the impugned common order of the Court below and it does not call for any interference from this Court. Resultantly, the civil revision petitions are dismissed. Consequently, connected civil miscellaneous petition is closed.
To:
The I Additional District Munsif, Kuzhithurai.
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