both C.R.Ps PRAYER in both C.R.Ps Civil Revision Petitions filed under Article 227 of Constitution of India, against the order dated 01.08.2008 in I.A. Nos.88 and 89 of 2007 in O.S. No.72 of 2006 on the file of District Munsif Court, Thiruvaiyaru.
!For Petitioners in both C.R.Ps ... Mr.M.Thikvijayapandian ^For Respondent in both C.R.Ps ... Mr.V.K.Vijayaragavan * * * * * :COMMON ORDER The revisions have been filed by the defendants in the suit challenging the order passed in I.A. Nos.88 and 89 of 2008 in O.S. No.72 of 2006 on the file of District Munsif Court, Thiruvaiyaru.
2. The petitioners herein are the defendants in the suit. The suit is filed by the respondent seeking the relief of possession. The suit was filed in the year 2006 and after examining the parties, the suit is posted for arguments. At that point of time, applications were filed by the petitioners in I.A. Nos.88 and 89 seeking to recall and reopen the evidence of P.W.1 for the purpose of marking the sale deed executed by the plaintiff. The said applications were dismissed on the ground that the earlier three applications even though ordered no such document was marked. Challenging the same the revisions have been filed.
3. In the present case, it is borne by record that on earlier three occasions the petitioners have filed the applications but they have failed to avail the opportunities. The learned counsel for the petitioners submitted that in view of the fact that the documents sought to be marked belongs to the respondent/plaintiff, the petitioners could not get the said document and that is the reason why they could not be marked on earlier occasions inspite of the orders passed by the Hon'ble Court. It is further submitted that at present the petitioners have got the document. The learned counsel for the petitioners submitted that as much as the document has obtained and also in view of the fact that in earlier occasions the applications having been allowed, the present application ought not have dismissed only on the ground of delay.
4. The learned counsel has relied upon the judgment reported in AIR 1984 DELHI 439(Suresh Kumar Vs. Baldev Raj), to content that application under Order 18 Rule 17 can be filed at any stage. The learned counsel also relied upon the recent judgment reported in 2009 (4) SCC 410 (Vadiraj Naggappa Vernekar (dead) Vs. Sharadchandra Prabhakasr Gogate), to submit that when new evidence is available and new facts are discovered subsequently the power under Order 18 Rule 17 can be exercised.
5. Per contra, the learned counsel for the respondent submitted that there is absolutely no bona fides in the applications filed by the petitioners. Even though sufficient opportunities were given earlier no document has been marked. The learned counsel further relied upon the judgment reported in 2008 (2) MLJ 382 (V.Shanmugam Vs. S.Umamaheswaran), to submit that the power under Order 18 Rule 17 of Civil Procedure code should be used only in exceptional cases.
6. I have heard the arguments of the learned counsel for the petitioners as well as the learned counsel for the respondent. It is no doubt true that the power under Order 18 Rule 17 has to be exercised sparingly and that too in exceptional cases. The said power cannot be used to fill up lacuna by a party or to let in any evidence which was available earlier. In the judgment reported in 2009 (4) SCC 410 (Vadiraj Naggappa Vernekar (dead) Vs. Sharadchandra Prabhakasr Gogate), the Hon'ble Supreme Court was pleased to hold that even though the said power has to be exercised sparingly the same can be exercised when new material has been brought before the Court. The Hon'ble Supreme Court has further held that if the Court decides that a particular fact is very much necessary for deciding the suit, then the power can be exercised by the said Court.
7. In the judgment reported in AIR 1984 DELHI 439(Suresh Kumar Vs. Baldev Raj), the Hon'ble Delhi High Court has held that the power under Order 18 Rule 17 can be exercised at any stage. In the judgment reported in 2008 (2) MLJ 382 (V.Shanmugam Vs. S.Umamaheswaran), the Hon'ble High Court has held that the power under Order 18 Rule 17 cannot be exercised as a moon shine on a flimsy or irrational ground.
8. In the present case as admitted by the learned counsel for the petitioners, the petitions have been filed to recall and reopen P.W.1 for the purpose of marking a document. The document in question has been executed by the plaintiff and therefore there is considerable force in the submission made by the learned counsel for the petitioners that the petitioners could not get the said copy when the earlier applications were filed. Moreover, the Court below has not given any finding about the relevancy of the document sought to be marked by recalling and reopening the evidence of P.W.1. This Court is also of the opinion that in as much as the application having been allowed on earlier occasion, the said fact alone would show that there is necessity for allowing the application. However as observed by the trial Court and as contended by the learned counsel for the respondent inspite of sufficient opportunities given the petitioners have not made use of the same earlier. The case has been dragged on at the insist of the petitioners even though this Court is of the opinion that the delay alone cannot be a ground for dismissing an application under Order 18 Rule 17. Hence taking into consideration of the above said fact this Court is of the opinion that the revision deserves to be allowed on condition the petitioners pays a sum of Rs.3,000/- to the respondent within a period of two weeks from the date of receipt of copy of this order. With this observation the revisions are allowed.
9. Taking into consideration of the facts and circumstances of the cases, the trial Court is directed to dispose of the suit within a period of three months from the date of receipt of copy of this order. No costs. Consequently the connected miscellaneous petition is closed.
cs To The District Munsif Court, Thiruvaiyaru.