Madras High Court
V.Palanisamy vs V.Shanmugam on 30 November, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/11/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU C.R.P.(MD)No.1120 of 2011 & M.P.(MD).No.1 of 2011 V.Palanisamy .. Petitioner Vs. 1.V.Shanmugam 2.Lakshmi 3.P.Kanthavel 4.Selvarani 5.Palanisamy 6.S.Shanmugam 7.Muruganantham 8.Manimegalai 9.Aravakuruchi Co-operative Society primary Agricultural and Rural Development Bank Ltd. Aravakuruchi. 10.Mumtaj 11.K.M.Mohamed Rafeek Ali 12.K.M.Haris Ali 13.Rubina Tathima .. Respondents PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India to set-aside the Fair and decreetal order dated 18.08.2010 made in I.A.No.102 of 2010 in O.S.No.255 of 2002 on the file of the Principal Sub Court, Karur. !For Petitioner ... Mr.N.Shanmugaselvam ^For Respondents ... Mr.K.Govindarajan for R1 for Mr.A.Ramesh :ORDER
This Civil Revision Petition is filed under Article 227 of the Constitution of India. The Civil Revision Petition is directed against an order passed by the Subordinate Court, Karur in I.A.No.102 of 2010 in O.S.No.255 of 2002, dated 18.08.2002.
2. When the Civil Revision Petition came up on 29.06.2011, notice regarding admission was ordered. Pending the notice of motion, an interim stay was also granted. After notice, the contesting first respondent entered appearance through his counsel. Some of the respondents are yet to be served.
3. The facts leading to the case are as follows:-
i) The first respondent herein had instituted the suit against the revision petitioner as well as the respondents 2 to 13 before the Subordinate Court, Karur.
ii)The relief claimed before the trial Court was that to divide the property into 18 equal shares with regard to good and bad nature of the soil and to allot 5 equal shares to the plaintiff/first respondent and also seeks to render accounts of the first defendant.
iii) The trial Court registered the plaint as O.S.No.255 of 2002 and ordered notice to the revision petitioner and other defendants. The revision petitioner is shown as first defendant and the sixth defendant had filed a written statement setting out the defence that there was a family arrangement on 22.04.1969 among the father of the first respondent (Velusami Gounder) as well as the revision petitioner and properties were divided on the basis of the family arrangement. It is also stated that the revision petitioner was entitled to deal with the properties allotted to his share in the family arrangement and he cannot be prevented from dealing with the same.
4. At this stage, the first respondent, filed an I.A.No.102 of 2010 purported to be under Order 18 Rule 1 CPC seeking for a direction that it was the revision petitioner/first defendant should get into the witness box first and let in oral evidence to prove the alleged family arrangement. Thereafter, the plaintiff may give his rebuttal evidence.
5. In the affidavit filed in support of the interlocutory application, the first respondent had completely denied the family arrangement and also the so called oral partition. He also claimed that the legal presumption that unless and until contrary is proved, a Hindu joint family properties are common to all shares and not partitioned. Therefore, it was the defendant who should first get into the box and let evidence.
6. On notice, the first defendant/revision petitioner filed counter affidavit stating that since the first respondent has filed the suit, when there is no partition and also denied the family arrangements, only the first respondent/plaintiff has to get into the box and render oral evidence. The application was filed only to drag on the proceedings.
7. The learned Subordinate Judge, by an order dated 18.08.2010 allowed the application directing the revision petitioner/first defendant should first open the case by getting into the box. This was on the ground that the defendant had specifically pleaded in the written statement that on 22.04.1967 a family arrangement was made.
8. Challenging the same, it was contended that it was a clear case of error on the part of the Subordinate Court, Karur. The lower Court is wrong in applying the principles of the right to begin.
9. Mr.N.Shanmugaselvam, Counsel for the petitioner refers to the judgment of this Court in Vijaya v. Saraswathi reported in (2008 (2) CTC 573) and contended that it is always the plaintiff should get into the box. But it was not such a case where defendant's right to cross-examine PW1 on the ground that there is conflict of interest between the two parties. In that context in paragraphs 8 and 9 it was observed as follows:-
"8. .... But, since it is demonstrated that their interest is common and that there is no conflicting interest, the question of permitting the petitioner herein to cross-examine P.W.1 does not arise in any manner.
9. .....Thus, the above provisions make it clear that the right of examining the witness is confined only to a party, who has brought action and the adversary party. Since it is not the case of the petitioner that P.W.1's case is adverse to that of her, the Court below has rightly disallowed the cross-examination on behalf of the petitioner herein."
10. It must be noted that the present case is a case of partition. In normal circumstances there will be very little difference of opinion between the partners. But, when a defendant seeks to purport a property in question on the basis of a family arrangement which was specifically acted upon, then it is for him to prove such a family arrangement before the Court so as to exclude those properties from the common pool. The plaintiff cannot be expected to prove the negative, as it was a matter not covered by any documentary evidence and based upon an oral arrangement followed by conduct of the parties.
11. Considering that it was a partition suit, the endeavor of the Court will be to assign proper share to all the sharers. The Court below had not committed any irregularity. It must also be noted at any time, the Court can ask parties to let in evidence and the power of the Court in that context was not taken away as held by the Supreme Court in Salem Advocate Bar Assn. v. Union of India reported in (2005) 6 SCC 344. In paragraph 32 it was observed as follows:
32.Order 18 Rule 2(4) which was inserted by Act 104 of 1976 has been omitted by Act 46 of 1999. Under the said rule, the court could direct or permit any party, to examine any party or any witness at any stage. The effect of deletion is the restoration of the status quo ante. This means that law that was prevalent prior to the 1976 amendment, would govern. The principles as noticed hereinbefore in regard to deletion of Order 18 Rule 17(a) would apply to the deletion of this provision as well. Even prior to the insertion of Order 18 Rule 2(4), such a permission could be granted by the court in its discretion. The provision was inserted in 1976 by way of caution. The omission of Order 18 Rule 2(4) by the 1999 amendment does not take away the court's inherent power to call for any witness at any stage either suo motu or on the prayer of a party invoking the inherent powers of the court.
12. In view of the above, the Civil Revision Petition is misconceived and will stand dismissed. Consequently, connected miscellaneous petition is closed. No costs.
jikr To The Subordinate Court, Karur.