Law Web: 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.