IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 03.03.2017
CORAM:THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
CRP(PD)Nos.4464 and 4465 of 2013
and
M.P.Nos.1 and 1 of 2013
1.R.Seliyan
2.Porkodi ... Petitioners in both the CRPs
Vs.
S.Kamarasu ... Respondent in both the CRPs

Common Prayer: Civil Revision Petitions filed under Article 227 of the Constitution of
India, against the Fair Order and Decreetal Order dated 26.09.2013 passed in
I.A.Nos.5944 and 5945 of 2013 in O.S.No.1726 of 2006 respectively, on the file of the
learned II Assistant, City Civil Court, Chennai.

For Petitioners : Mrs.P.T.Asha (In both the CRPs) for M/s.Rajnish Pathiyil For
Respondent : Mr.R.Thiagarajan (In both the CRPs) COMMON ORDER The plaintiffs in
O.S.No.1726 of 2006 are the civil revision petitioners before this Court, challenging the
common order passed in I.A.Nos.5944 and 5945 of 2013, dated 26.09.2013, on the file of
the learned IInd Assistant Judge, City Civil Court, Chennai.

2. The case of the plaintiffs is that they have filed the suit for permanent injunction
against the respondent herein. After the evidence was over, these petitioners/plaintiffs
were filed two applications in I.A.No.5944 of 2013 filed under Order 18 Rule 17 of
C.P.C. for re-open the case and I.A.No.5945 of 2013 for re-call the witness to be
examined on the plaintiffs' side.

3. It is the case of the petitioners/plaintiffs is that when the 1st petitioner was examined as
PW1 elaborate false complaint also made by the respondent/defendant's counsel,
thereafter after evidence of the plaintiffs' side, the defendant also examined. The present
suit in O.S.No.1726 of 2006 is connected with O.S.No.5792 of 2006, which is adjacent
Vinayaga Lay out.

4. The petitioner also come forward by saying that certain confusions with the revenue
records pertaining to the properties in the Bhuvaneswari lay out and Vinayaga lay out, the
Revenue Officers like Tahsildar, Mambalam-Guindy Taluk and District Revenue Officer
have to be examined to clarify the status of the above lay outs to bring the truth and prove
the case on the plaintiffs' side. Therefore, they have filed the above two I.A.s for re-open
the case and re-call the witnesses to be examined on the side of the plaintiffs.

5.On receipt of the notice in both the applications, the respondent has filed his counter
denying the allegations set out in the petition and respondent stated that only to drag on
the proceedings, these petitioners/plaintiffs have filed the above two applications to re-
open the case and to re-call the witnesses viz., the revenue officials. Since the matter has
been posted for arguments in the year 2013 and the matter is pending for long time only
for the purpose of re-open the case and re-call the witnesses.
6.The respondent also states that the petitioners have filed their suit in O.S.No.1726 of
2006 against the respondent for permanent injunction. The petitioner has to prove the
essential ingredients of Order 39 of C.P.C. to maintain their suit. For proving the
ingredients of Order 39 of C.P.C. the examination of Tahsildar and other revenue officers
are not necessary. Only in order to prolong the cases pending from the year 2006 also, the
plaintiffs have filed the petition after petition on one pretext or other with the view to
harass the respondent/defendant.

7.The respondent also states that the Hon'ble Supreme Court repeatedly held that the
vexatious petitions are not entertained and the cases could be finished by the Subordinate
Courts in time. In the instant case, the petitioners/plaintiffs have not come forward for
finishing the case that too for an injunction suit pending from the year 2006 onwards i.e.
for more than 7 years and even then, the petitioners/plaintiffs have require more time and
this sort of practice should not be encouraged by the Court. Therefore, he prayed the
learned IInd Judge, City Civil Court, Chennai to dismiss the application.

8.Considering both side arguments, the learned IInd Judge, City Civil Court, Chennai was
dismissed both the applications in I.A.Nos.5945 and 5944 of 2013 in O.S.No.1726 of
2006, dated 26.09.2013, on the ground that the examination of the defendants' side
evidence was also over and the suit was posted for arguments on several occasions. While
the matter is pending for arguments that the petitioner/plaintiff has filed I.A.No.10762 of
2010 for re-open the plaintiff's side for examining and further witnesses which was
allowed on 15.07.2010 on payment of cost and even thereafter there was no examination
of fresh witness on the plaintiff's side.

9. The learned Judge also says that thereafter, the petitioners/plaintiffs have filed a
petition in I.A.No.1132 of 2012 to re-open and to recall PW2 evidence which was
allowed on 13.12.2012 and thereafter, the matter was posted for argument on several
dates, at that stage, the present application in I.A.Nos.5944 and 5945 of 2013 were filed
for re-open the case and to re-call the witnesses.

10.The learned Judge also states that the plaintiffs have not diligent in prosecuting the
case, when the defendant's side evidence was closed in the year 2010 itself. These
applications were filed belatedly, there is no reason for the delay in filing these two
applications. The learned Judge also states that if there is any confusion in the revenue
records, the plaintiffs can very well obtain certified copy of necessary revenue records
from Taluk Office. But, without doing so and without filing any document along with the
applications, it is not open to the petitioners/plaintiffs, now sought for to re-open the
plaintiffs side evidence that too after three years, after closing of defendant's side
evidence. Therefore, the learned Judge says that it was found that the petition has filed
only with an intention to delay the proceedings. Challenging the same, these Civil
Revision petitions have been filed.

11.I heard Mrs.P.T.Asha, learned counsel appearing for the petitioners and
Mr.R.Thiagarajan, learned counsel appearing for the respondent in both the Civil
Revision Petitions and perused the records.
12.It is the case of the petitioners/plaintiffs is that though the suit has been filed for bare
injunction, but it was after evidence by both the parties, the plaintiffs have filed the two
applications on two occasions for re-open and to re-call, which was allowed by the
learned IInd Assistant Judge, City Civil Court, Chennai. But, even then the
petitioners/plaintiffs have not examined the fresh witnesses.

13.Though the respondent has vehemently opposed for allowing the Civil Revision
Petition, but they have contended that these petitioners were filed these two petitions only
to drag on the proceedings for long time.

14. It is absolutely correct when the suit has been filed for permanent injunction, the
Court must give fair opportunity to the petitioners/plaintiffs to prove their case before the
trial Court. This Court and the Hon'ble Apex Court has categorically held that the Courts
must have give fair opportunity to both sides and thereafter orders should be passed only
based on that the justice should be delivered. When the matter has been posted for
arguments in the year 2013 both the Courts as well as both the counsels were not
attempting to dispose the suit by taking proper steps. Apart from this, these two
applications were filed in the year 2013 and the same were dismissed on 26.09.2013. But,
subsequently these two civil revision petitions were filed in the year 2013 and the same is
pending for the past four years before this Court. Therefore, this Court having power to
exercise the jurisdiction under the Article 227 of the Constitution of India to meet out the
ends of justice and to correct any manifest error in the order passed by the Courts below.

15. This Court rendered a judgment in a case of R.Kalaiarasan v. M.Lingam reported in

2010 (1) MWN (Civil) 730, it is stated as follows:

10.During the course of arguments, Mr.P.Jagadeesan, learned counsel appearing for the
respondent had produced a judgment rendered by this Court in P.Kalaiarasan v.
M.Lingam and others reported in 2010-1-L.W. 370. In the said judgment it is stated as
follows:

16.That apart, the plaintiff's evidence was closed in March 2006 and I.A.Nos.13591 and
13592 of 2007 were filed in August 2007 and no reasons, much less, acceptable reasons
were given by the respondents/defendants for filing the applications except saying that
these applications are to be allowed in the interest of justice as they misplaced some
records and some of the papers were destroyed. No reason whatsoever was given by the
respondents/defendants for examining D.W.1, D.W.2 and D.W.3 before completing the
cross examination of P.W.1. Further, when the suit was posted on 24.7.2007 for the
arguments of the respondents/defendants, instead of arguing the matters, they successfully
adjourned the matter on several occasions from 23.7.2007 to 17.8.2007 by filing a
number of adjournment petitions. On 17.8.2007, there was no representation on behalf of
the respondents/defendants and therefore, the suit was posted for judgment on 21.8.2007.
It was only at that time the respondents/defendants suddenly realised that P.W.1 has not
been effectively cross examined and this, in my opinion, is definitely for the purpose of
further postponing the suit proceedings and I do not find any bonafide in those
applications.
19.The Allahabad High Court, in the above judgment, observed that the power under
Order XVIII Rule 17 of C.P.C. can be exercised even at the stage of writing a judgment
by the court, but, this power should not be exercised lightly and the rule is that it should
be used sparingly and in exceptional cases only.

20.The Andhra Pradesh High Court went to the extent of observing that no authoritative
pronouncement has been brought to the notice of the court, wherein it is held that a
witness could b e re-called by re-opening the suit after it was adjourned for passing
judgment.

21.I am concurring with the judgment of the Allahabad High Court that under Order
XVIII Rule 17 C.P.C., re-examination of witness is possible even at the stage of writing a
judgment, but the power should not be exercised lightly and it should be used in
exceptional cases only.

16.The said case is squarely applicable to this case, since this Court and the Hon'ble
Allahabad and Andhra Pradesh High Courts very categorically held that a witness could
be recalled by reopening the suit after it was adjourned for passing Judgment. Therefore,
it is my absolute view that Order 18 Rule 17 of CPC can be exercised even at the stage of
writing a Judgment by the Court, but, this power should not be exercised lightly and the
rule is that it should be used sparingly and in exceptional cases only. This case is
definitely exceptional case and one more opportunity to be given to the
petitioners/plaintiffs by applying the Judgment of the Hon'ble Allahabad and the Andhra
Pradesh High Courts.

17.Therefore, while the applications as well as the civil revision petitions are pending
from the year 2013 onwards, by giving one more opportunity to the petitioners/plaintiffs
within a stipulated period of time, no prejudice would be caused to the
respondent/defendant. But, on the other way, it will give justice to both the parties.

18.Therefore, I am inclined to give one more opportunity to the petitioners/plaintiffs to

put forth their case before the learned trial Judge, by allowing these two applications filed
in I.A.Nos.5944 and 5945 of 2013. But, though the suit has been filed in the year 2006
and the evidence was over in the year 2010 and the same is pending for arguments from
2013 onwards and hence the petitioners/plaintiffs should compensate the
respondent/defendant by way of cost.

19.In the result:(a) both the Civil Revision Petitions are allowed, by setting aside the
orders in I.A.Nos.5944 and 5945 of 2013 in O.S.No.1726 of 2006 respectively, dated
26.09.2013, on the file of the IInd Assistant Judge, City Civil Court, Chennai, on
condition that the petitioner should pay a sum of Rs.50,000/- as cost to the learned
counsel appearing for the respondent within a period of two weeks from the date of
receipt of a copy of this order;

(b) the learned IInd Assistant Judge, City Civil Court, Chennai, is hereby directed to take
up the suit on day to day basis, without giving any adjournment to either parties and to
dispose of the suit within a period of 15 days from the date of receipt of a copy of this
order. Both the parties are hereby directed to give their fullest co-operation for early
disposal of the suit within the stipulated period of time as fixed by this Court;

(c) the learned IInd Assistant Judge, City Civil Court, Chennai, is hereby directed to
complete the case and to pass orders thereby and to report before this Court on
18.08.2017. Consequently, connected miscellaneous petitions are closed.

.MR.JUSTICE M.V.MURALIDARAN