Madras High Court
Muthalammal And 2 Others vs Sathya Naicker on 12 June, 1998
Equivalent citations: 1998(2)CTC733
ORDER
1. The plaintiffs in O.S.No.338 of 1977 and the defendants in O.S.No.19 of 1978, both the suits on the file of the District Munsif, Kovilpatti, are the appellant. The defendant in O.S.338 of 1977 and the plaintiff in O.S.No.19 of 1978 has filed the cross objections in S.A.No.369/84.
2. The suit O.S.No.338 of 1977 was filed by the appellants for declaration and injunction in respect of a house property. O.S.No.19 of 1978 was filed by the respondent for declaration and injunction in respect of landed properties. The first appellant and the respondent are sister and brother and appellants 2 and 3 are the sons of the first appellant.
3. The facts necessary for the disposal of the second appeals are as follows:
Under the original of Ex-A-1 the house property was purchased jointly by the first appellant and the respondent on 2.3.1965. This was immediately followed by a settlement deed under the original of Ex.A-2 dated 4.3.1965 under which the respondent purported to settle his share in the house property in favour of appellants 2 and 3 retaining for himself a life interest. According to the appellants, though the respondent retained a right to joint possession, the said joint possession was relinquished pursuant to a family arrangement between the appellants on the one side and the respondent on the other. Appellants 2 and 3 were to discharge the loan due from the respondent to Chinnanaickenpatti Co-operative Society in lieu of the respondent relinquishing his rights in the house property. According to appellants 2 and 3 they discharged the loan and the appellants were in exclusive possession and enjoyment having ah absolute title and the house also was registered in the name of the second appellant, who was also paying the house tax and since the respondent attempted to interfere, the suit O.S.No.338 of 1977 came to be filed for declaration and injunction.
So far as the other suit O.S.No.19 of 1978 is concerned, the respondent claimed title to the lands ancestrally and the appellants tried to interfere with the possession and enjoyment and the suit was therefore necessitated.
4. The defence of the respondent with regard to the suit relating to the house was that the settlement deed Ex.A-2 was a rank forgery, that he did not execute the same and that taking advantage of the interim order of injunction granted by the court he was thrown out of the house.
5. So far as the suit relating to the lands, the defence of the appellants was that the lands were their ancestral property, that the Zamin Patta also stood in the name of Karutha Gurusamy Naicker and Gurusamy, the grandfather of appellants 2 and 3, that after the death of the father of appellants 2 and 3, the respondent took advantage of his position as their maternal uncle manocurred the records in his favour and that the appellants were alone in enjoyment of the lands and the suit was liable to be dismissed.
6. The trial court framed the necessary issue in both the suits and after a joint trial, by a common judgment dated 30.9.1980 decreed both the suits. The appellants filed A.S.No. 10 of 1981 against the decision in O.S.No.19 of 1978. The respondent filed A.S.No.113 of 1981 against the decision in O.S.No338 of 1977. There were also application filed for reception of additional evidence. The learned Principal Subordinate Judge, Tuticorin, discusses the appeal A.S.No.10 of 1981 filed by the appellants, allowed the appeal A.S.No.113 of 1981 in part holding that the appellants would be entitled to only declaration with regard to the house property and they would not be entitled to a decree for injunction.
7. Aggrieved, the present second appeals have been filed. I have already referred to the cross objections. The substantial question of law framed for decision at the time of admission in S.A.No.369/84 is as follows:
"Whether the reasonings given by the first Appellate Court for reversing the finding of the trial court with regard to the relief of injunction are perverse?"
The substantial question of law framed for decision at the time of admission in S.A.No.370 of 1984 are as follows:
"(1) Whether the legal title in favour of the defendants can be inferred from the documents Exs.A-1 to A-39? and (2) Whether the conclusions of both the courts below, approving the title of the respondent\plaintiff solely on the ground of Exs.D-5 to D-9, namely patta and kist receipts, are correct?"
8. The appellants have taken out an application in each of the second appeals for raising additional substantial question of law. The additional substantial question of law relates to the omission by the courts below to follow the provisions of Order 18 Rule 3-A of the Code of Civil procedure and the substantial question of law sought to be raised is as follows:
"Whether the courts below erred in decreeing the suit on the basis of the evidence of D.W.2 and the documents marked through him when his evidence was not admissible as mandatory provisions of Order 18 Rule 3-A was not complied with?"
9. Let us first take the additional substantial question of law sought to be raised in the second appeals for consideration the learned counsel for the appellants submitted that Order 18, Rule 3-A of the Code of Civil Procedure enjoined that the party to the litigation should be examined first before other witnesses were examined. In the instant case, the respondent, who was the defendant in O.S.No.338 of 1977 and the plaintiff in O.S.No.19 of 1978 was examined only after his witness was examined as D.W.1 and in view of the mandatory character of Order 18 Rule 3-A of the Code of Civil Procedure, the courts below ought to have rejected his evidence and the documents marked through him and according to the learned Counsel, if this was done, there would not be any evidence left to substantiate the case of the respondent and the appellants would be entitled to succeed in both the suits. The learned Counsel relied on a number of decisions of this Court and a decision of the patna High Court. The decisions are as follows:
(1) V. Jayakannan and three others v. V.K. Sampath @ V.K. Sampathkumar, 1987 TLNJ 340; (2) Pravesh Kumari and others v. Rishi Prasad and others, 1986 Pat. 315; (3) Ayyasami Gounder and others v. T.S.Palanisami Gounder, ; (4) Dr. V.K. Muthusamy v. M/s U.A. Habeen Firm by Partner U.A.Habeeb and others, ; (5) Marappa Gounder and others v. Sellappa gounder and others, ; (6) Samidurai and 3 others v. Kanakayal ; (7) U.K. Rao v. A Henry, 1986 TLNJ 78 and (8) Banumathy v. M. Venkatesan, .
10. All the above decisions have been referred to by Jagadeesan, J. in Samidurai and three others v. Kanakayal, . The learned Judge has observed that the provisions of Order 18, Rule 3-A do not expressly say as to when the application by the party has to be filed and whether it could be filed at any stage after examination of the witnesses before the party. The learned Judge had differed from the view expressed by Ratnam, J. as he then was, in Ayyasami Gounder and others v. T.S. Palanisami Gounder, where the learned Judge had said that the application for permission to examine other witnesses before we examining the party had to be made before the examination of the witnesses and that it could not be done later on.
11. The courts have differed on this point as to whether it is directory or mandatory. Except for the decision in Pravesh Kumari and others v. Rishi Prasad and others, , none of the other decisions has elucidated the point as to what is to happen to the evidence of the witnesses recorded before the recording of the evidence of the party. In Pravesh Kumari's case, a Bench of the Patna High Court has observed that such evidence should not be expunged. In my view, this ratio of the patna High Court should be followed. The test should be as to what will be the prejudice caused to the parties. I am unable to see as to how the examination of a third party before examination of the respondent had caused prejudice to the other side in any manner in the present case.
12. It was held as early as in Cropper v. Smith, 1884-26 Ch.D. 700 that the object of Codes and Rules of Procedure was to decide the rights of parties and not to punish them for their mistakes. In Robinson and others v. Unicos Property Corporation Ltd,. 1962 (2) All. E.R. 24 it was held that punishing for mistakes was of course not administration of justice. In Jai Ram Manohar Lal. v. National Building national Supply, the Supreme Court held as follows:
"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction to the rules of procedure."
13. Bearing the above in mind, if we analyse the case on hand, it would transpire that the omission to resort to the provisions of Order 18, Rule 3-A should not be put against the respondent thus jeopardizing the course of justice.
14. One other thing to be noticed is that this point was not at all raised by the appellants in either of the two courts below. No doubt, the appellants are entitled to raise the point as an additional substantial question of law. But, in my view, the appellants were not in any way prejudiced by the examination of the respondent as B.W.2 after examination of his witness as D.W.1 and following the decision of the Patna High Court the evidence need not be expunged. The additional substantial question of law raised is therefore answered against the appellants.
15. Now adverting to the other two substantial questions of law, the courts below have found that the house property was purchased jointly by the first appellant and the respondent and that the settlement deed had been validly executed by the respondent in favour of appellants 2 and 3 retaining a life interest in himself. These are findings of fact and cannot be interfered with. The Lower Appellate court chose to discredit the case of the appellant that the respondent pursuant to a family arrangement gave up his life interest in favour of appellants 2 and 3 in lieu of their discharging the society debt of the respondent. The Lower Appellate Court in this regard found that appellants 2 and 3 had not established that they discharged the loan of the respondent and on the contrary it was only the respondent, who discharged the loan to the Co-operative Society and that the case of appellants 2 and 3 was false. No exception can be taken to this finding by the Lower Appellate Court. The Lower Appellate Court was justified in refusing the relief of injunction so far as the house property was concerned.
16. So far as the lands are concerned, the Lower Appellate Court found that the respondent had patta in his favour in respect of the lands, that he had dealt with the lands in his own right by mortgaging them, that the confusion regarding the initials contained in the documents had been made much of and it did not really matter and that the lands belonged absolutely to the respondent and he was entitled to a decree for declaration and injunction in respect of the lands.
17. The cross objections relate to the refusal of the relief of injunction by the Lower Appellate Court. Having regard to the discussion above, the case of the cross objectors has also to be rejected.
18. The substantial questions of law raised in both the second appeals are answered against the appellants and the second appeals as also the cross objections are dismissed. There will, however, be no order as to costs.