Sunday, 1 March 2020

Whether court can permit re-opening of evidence for receiving additional documents if those document relates to period subsequent to filing of suit?

 In this regard, the learned 
counsel also relied upon the judgment in P.Chinnadurai vs K.S. Subramaniam 
2015(1) MWM (Civil) 159, wherein the judgment of the Honble Supreme Court in 
Vadiraj Naggappa Vernekar vs. Sharad Chand Prabhakar Gogate, 2009 (4) MLJ 288 
(SC) and Bagai Constructions vs. Gupta Building Material Store, 2013 (1) MWN 
(Civil) 573 were relied upon for the proposition that the Court cannot permit 
parties to fill up the lacunae in the evidence of witnesses by relying upon 
Order 18 Rule 17 C.P.C.
14. As regards the other documents, the trial Court concluded that 
document no.9, namely, the death certificate of Mariyayee is not relevant 
because the death or the date of death is not disputed.  Likewise, as regards 
document nos.10 to 14, the trial Court concluded that the said documents 
relate to the period subsequent to the filing of the suit and, therefore, 
cannot be relied upon to establish the suit claim. I find no infirmity or 
material irregularity in the findings or conclusions of the trial Court. 
Accordingly, there is no reason to interfere with the impugned order.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DELIVERED ON: 19.07.2019 

CORAM :
 MR.JUSTICE SENTHILKUMAR RAMAMOORTHY   

C.R.P.(PD)(MD)Nos.2234 to 2236 of 2014
and
M.P.(MD) Nos.1 of 2014 and 1 of 2015


K.Ganesan vs.   Alamelu


Citation: AIR 2020(NOC) 28 Mad




1. Since common issues arise in all the three Civil Revision Petitions, 
this common order is pronounced in respect thereof.

2. These three Civil Revision Petitions are filed by the Plaintiff in 
O.S. No. 22 of 2009. The Revision Petitioner/ Plaintiff filed three Interim 
Applications in the above mentioned suit to reopen the plaintiffs evidence, 
recall P.W.1 and for permission to receive additional documents.

3.The facts that are relevant for the disposal of these Civil Revision 
Petitions are briefly stated herein:
The Civil Suit was filed by the Revision Petitioner/ Plaintiff herein 
for a declaration that the Settlement Deed dated 10.01.2005, which was 
executed by the second Defendant and the deceased, Karuppaiyan, in favour of 
the first Defendant in respect of the suit properties, is null and void and 
for a consequential permanent injunction restraining the Respondents / 
Defendants in the suit from interfering with the Plaintiffs possession and 
enjoyment of the suit property. 

4. According to the Revision Petitioner/Plaintiff, the suit schedule 
property was bequeathed to the Revision Petitioner/ Plaintiff under a Will 
dated 16.05.2003 by his maternal aunt, Mariyayee, who, in turn, is said to 
have acquired the said properties under sale deeds executed on various dates 
between 01.12.1986 to 18.05.1999. According to the Revision Petitioner/ 
Plaintiff, the said Mariayyee died on 24.02.2005 and the Will came into 
operation on the said date. Therefore, the Revision Petitioner/ Plaintiff 
succeeded to the suit schedule properties as a legatee under the Will dated 
16.05.2003. 
5. On the contrary, the case of the Respondents/ Defendants is that the 
father of the first Defendant and husband of the second Defendant, namely, 
Karuppaiyan, acquired the suit schedule properties out of his own funds but 
registered the same in the name of his first wife, Mariyayee. Consequently, 
the said property is not the self acquired property of Mariyayee and, 
therefore, the bequest under the Will of the said property is not valid and 
binding. The trial in the said suit was at an advanced stage and the 
Plaintiffs evidence had been closed when the three interim applications for 
reopening the Plaintiffs evidence, recalling P.W.1 and permitting 
additional documents to be exhibited were filed.

6. The learned counsel for the Revision Petitioner/ Plaintiff submitted 
that the trial Court committed a material irregularity in the exercise of  
jurisdiction by rejecting the three interim applications. In this regard, he 
referred to the plaint and written statement and submitted that it is 
necessary for the Revision Petitioner/Plaintiff to establish that Karuppaiyan 
had purchased the properties in his name so as to  disprove the contention of 
the Respondents/ Defendants that the suit schedule properties were acquired 
by Karrupaiyan in the name of his first wife, Mariyayee. He further submitted 
that the trial Court ought not to have concluded that it is unnecessary to 
reopen the plaintiff-s evidence because the documents that the Revision 
Petitioner/ Plaintiff intended to exhibit were irrelevant. 

7. According to the learned counsel for the Revision Petitioner/ 
Plaintiff, such a finding should not have been recorded in these interim 
applications and that the relevance and materiality of the said documents 
should have been decided at the time of final disposal. On the contrary, the 
learned counsel for the Respondents/ Defendants submitted that the trial 
Court has properly exercised its discretion in rejecting the applications 
because no useful purpose would be served by permitting the Revision 
Petitioner/ Plaintiff to reopen the Plaintiffs evidence in order to exhibit 
the documents in question. In specific, the learned counsel for the 
Respondents/ Defendants pointed out that the Revision Petitioner / Plaintiff 
would be required to prove that the Settlement Deed dated 10.01.2005 is 
invalid and that the bequest under the Will dated 16.05.2003 is valid. 

8. In order to prove the aforesaid, he submitted that the documents 
that the Revision Petitioner/ Plaintiff seeks to exhibit by reopening the 
Plaintiffs evidence and recalling P.W.1 are irrelevant. In this connection, 
he referred to the impugned order of the trial Court wherein it was held that 
the sale deeds (documents) are irrelevant to prove the contentions of the 
Revision Petitioner because the said sale deeds cannot prove that the sale 
consideration for the sale deeds relating to the suit schedule properties was 
paid by Mariyayee. 

9. The trial Court further recorded that document no.9, which is the 
death certificate of Mariyayee, could have been produced earlier and is again 
not relevant because the death of Mariyayee is not disputed by the 
Respondents/ Defendants. As regards document nos.10 to 14, the trial Court 
recorded the finding that the said documents relate to the period subsequent 
to the date of filing of the suit and are therefore, neither relevant nor 
necessary to prove the case of the Revision Petitioner/ Plaintiff.

10. After referring to the above mentioned relevant portion of the 
impugned order, the learned counsel for the Respondents/ Defendants also 
referred to the judgment of the Division Bench of this Court in S.V.Matha 
Prasad vs Renuka Devi 2015(1) MWN (Civil) 83. In the said judgment, the 
Division Bench examined the scope of Order 18 Rule 17 of C.P.C and held that 
the power under the said provision is not intended to enable a party to 
recall witnesses for further cross examination or to place additional 
material or evidence, which could not be produced when evidence was recorded. 
It was further held therein that Order 18 Rule 17 C.P.C. is primarily a 
provision that enables the Court to clarify an issue or doubt by recalling 
any witness either suo moto or at the request of the party, so as to put 
questions to those parties and elicit answers. In this regard, the learned 
counsel also relied upon the judgment in P.Chinnadurai vs K.S. Subramaniam 
2015(1) MWM (Civil) 159, wherein the judgment of the Honble Supreme Court in 
Vadiraj Naggappa Vernekar vs. Sharad Chand Prabhakar Gogate, 2009 (4) MLJ 288 
(SC) and Bagai Constructions vs. Gupta Building Material Store, 2013 (1) MWN 
(Civil) 573 were relied upon for the proposition that the Court cannot permit 
parties to fill up the lacunae in the evidence of witnesses by relying upon 
Order 18 Rule 17 C.P.C.

11. By referring to and relying upon the above mentioned judgments, the 
learned counsel for the Respondents/ Defendants submitted that the interim 
applications filed by the Revision Petitioner / Plaintiff were liable to be 
rejected and that there is no reason to interfere with the order of the trial 
Court.

12. The pleadings, impugner order and oral submissions were considered 
carefully.

13. In view of the nature of the suit, it is self evident that the 
Revision Petitioner / Plaintiff would be required to prove that the 
Settlement Deed dated 10.01.2005 is invalid. For this purpose, it may be 
necessary for the Revision Petitioner / Plaintiff  to prove that the bequest 
under the Will dated 16.05.2003 is valid so as to establish the Revision 
Petitioner/ Plaintiffs title to the suit schedule properties. As correctly 
concluded by the trial Court, out of the documents that the Revision 
Petitioner / Plaintiff  intended to exhibit by reopening the Plaintiff 
evidences, the documents at Sl.Nos.1 to 8, which are sale deeds in the name 
of Karuppaiyan, would not advance the cause of the Revision Petitioner / 
Plaintiff. In specific, the fact that Karuppaiyan has purchased properties in 
his own name certainly cannot prove that the Settlement Deed is not valid or 
that the Will is valid or that the suit schedule properties are self acquired 
properties of Mariyayee. Therefore, the findings of the trial Court, in this 
regard, cannot be faulted. 
14. As regards the other documents, the trial Court concluded that 
document no.9, namely, the death certificate of Mariyayee is not relevant 
because the death or the date of death is not disputed.  Likewise, as regards 
document nos.10 to 14, the trial Court concluded that the said documents 
relate to the period subsequent to the filing of the suit and, therefore, 
cannot be relied upon to establish the suit claim. I find no infirmity or 
material irregularity in the findings or conclusions of the trial Court. 
Accordingly, there is no reason to interfere with the impugned order.

15. For the foregoing reasons, these Civil Revision Petitions are 
dismissed. No costs. Consequently, connected miscellaneous petitions are 
closed.

   19.07.2019


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