Madras High Court
Sarasammal vs Sivasamy on 23 September, 2024
C.R.P.Nos.3615 and 3616 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.09.2024
CORAM
THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN
C.R.P.Nos.3615 and 3616 of 2024
and
C.M.P. No. 19642 of 2024
1.Sarasammal
2.Neelavathi
... Petitioners
in both C.R.Ps.
Vs.
1. Sivasamy
2. Palanisamy
3. Karuppathal
4. Mani ... Respondents
in both C.R.Ps.
COMMON PRAYER: Civil Revision Petitions filed under Article 227 of
Constitution of India praying to set aside the fair and final order dated
01.07.2024 made in I.A.Nos.13 and 12 of 2024 in O.S.No.191 of 2011 on the
file of the learned District Munsif Court, Avinashi.
For Petitioners : Mr.V.Anandhamoorthy
(in both C.R.Ps)
For Respondents : Mr.T.Tamilavel
(in both C.R.Ps)
https://www.mhc.tn.gov.in/judis
1/7
C.R.P.Nos.3615 and 3616 of 2024
COMMON ORDER
These Civil Revision Petitions arise against the order passed by the learned District Munsif, Avinashi in I.A.Nos.12 and 13 of 2024 in O.S.No.191 of 2011 dated 01.07.2024.
2. Heard Mr.V.Anandhamoorthy, for the Civil Revision petitioners and Mr.T.Tamilavel, for the respondents.
3. The Civil Revision Petitioners are the defendants 2 and 4 in the suit. The respondents 1 and 2 presented the suit in O.S.No.191 of 2011 for declaration of title and for consequential relief of permanent injunction. The defendants were set ex-parte on 12.09.2017. Their attempt to set aside the ex-parte order resulted in failure. Thereafter, an ex-parte decree was passed on 10.10.2017. To set aside the ex-parte decree, the petitioners filed applications in I.A.Nos.1612 and 1614 of 2017. The learned District Munsif set aside the ex-parte decree on 12.02.2021.
4. The plaintiffs aggrieved by the said order preferred two Civil Revision Petitions to this Court in C.R.P.Nos.2207 and 2208 of 2021. The said Civil Revision Petitions came to be dismissed on 20.12.2023. Thereafter, the https://www.mhc.tn.gov.in/judis 2/7 C.R.P.Nos.3615 and 3616 of 2024 suit was again opened up for trial. It transpires that the second plaintiff has filed a proof affidavit, whereas, the plaintiffs presented the first plaintiff Sivasami for cross examination. Noting this error, the evidence that was tendered by the said Sivasami was eschewed and the second plaintiff Palanisamy presented again in the witness box as P.W.1. He was cross examined on 27.02.2024 and other two witnesses P.W.2 and P.W.3 were cross examined on 15.03.2024. Soon thereafter, the defendants filed applications in I.A.Nos.12 and 13 of 2024 to re-open and re-call the evidence of P.W.1 to P.W.3 for further cross examination. The said applications were dismissed by the impugned order dated 01.07.2024, hence, these Civil Revision Petitions.
5. The narration of the aforesaid facts would go to show that the suit itself restored for the purpose of trial only on 20.12.2023. The proceedings which took place from 2011 till December, 2023 were all ex-parte in nature.
6. As pointed out by Mr.Anandhamoorthy, an error seems to crept in on the side of the plaintiffs in filing the proof affidavit of the second plaintiff, but the examination had been done for the first plaintiff. On account of this fact, it is possible that during the course of trial, P.W.1 would have known about the line of cross examination and therefore, would have been vigilant enough to https://www.mhc.tn.gov.in/judis 3/7 C.R.P.Nos.3615 and 3616 of 2024 cover the facts. Further more, P.W.2 and P.W.3 are the attesting witnesses, whose evidence will be crucial for the decision that will be rendered in the suit.
7. In order to give an opportunity to the defendants, I am inclined to allow these Civil Revision Petitions, but with certain conditions :
(i) I.A.Nos.12 and 13 of 2024 will stand allowed on the condition that the defendants 2 and 4 shall pay a sum of Rs.20,000/- (Rupees Twenty Thousand only) to the plaintiffs on or before 26.09.2024. In case the said amount is paid, the learned District Munsif, Avinashi is requested to permit cross examination of P.W.1 to P.W.3 by the defendants 2 and 4 alone on 26.09.2024 and 27.09.2024. The dates for cross examination have been fixed by consent, if any plea of adjournment is made by the defendants, the learned District Munsif, is entitled to close the evidence and proceed further.
(ii) Mr.T.Tamilavel assures this Court that all the three witnesses will be available in the Court for the purpose of cross examination.
8. In the light of the above discussion, these Civil Revision Petitions stand allowed and the orders passed in I.A.Nos.12 and 13 of 2024 are set aside. There shall be no order as to costs. Consequently, connected https://www.mhc.tn.gov.in/judis 4/7 C.R.P.Nos.3615 and 3616 of 2024 miscellaneous petition is closed.
9. In case, the defendants 2 and 4 do not make the payment of Rs.20,000/- as directed by this Court, the benefit granted under this order will not enure in their favour. It is made clear that the Civil Revision petitioners will not be entitled to any extension of time for payment as ordered in these petitions by this Court.
10. The learned District Munsif, Avinashi, is requested to act upon the web copy of this order and not insist upon production of certified copy, so that the smooth flow of trial need not be hindered any further.
23.09.2024 Note : Upload forthwith Index : Yes/No Speaking order : Yes/No NCC : Yes/No ms https://www.mhc.tn.gov.in/judis 5/7 C.R.P.Nos.3615 and 3616 of 2024 To The District Munsif Court, Avinashi.
https://www.mhc.tn.gov.in/judis 6/7 C.R.P.Nos.3615 and 3616 of 2024 V.LAKSHMINARAYANAN, J ms C.R.P.Nos.3615 and 3616 of 2024 and C.M.P. No. 19642 of 2024 23.09.2024 https://www.mhc.tn.gov.in/judis 7/7