Allowed

A.Zeenathunisa v. M.H.Dawood Sheriff

Madras HC19 Dec 2022CRP/2324/2019

Case brief

AI extract

What is this about?

This judgment quashes a lower court order allowing the recall of a witness during argument to mark documents. The High Court held that the trial court misused its powers to fill evidence lacunae rather than to clear ambiguities, as the party had failed to cross-examine earlier and breached cost conditions.

What did the court decide?

Order dated 20.03.2019 set aside; Trial Court directed to dispose suit within eight weeks.

A.Zeenathunisa Vs M.H.Dawood Sheriff — Partition | Madras HC (2022)

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C.R.P.Nos.2324 & 2327 of 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 19.12.2022

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CORAM

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THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

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C.R.P.Nos.2324 & 2327 of 2019 and C.M.P.Nos.15180 & 15205 of 2019

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A.Zeenathunisa 2. M.H.Rizwan Sheriff 3. M.H.Naziatha Begum ... Petitioners in both C.R.Ps

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Vs.

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M.H.Dawood Sheriff ... Respondent in both C.R.Ps

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Common Prayer :- Civil Revision Petitions filed under Article 227 of the Constitution of India, to set aside the order and decree made in I.A.Nos.1 & 2 of 2019 respectively, in O.S.No.26 of 2013 dated 20.03.2019 on the file of the learned Subordinate Judge at Thiruvallur.

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For Petitioners in both CRPs : Mr.Mohammed Fayaz Ali

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For Respondent in both CRPs : No appearance

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Page 1 of 6

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https://www.mhc.tn.gov.in/judis

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C.R.P.Nos.2324 & 2327 of 2019

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COMMON ORDER

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These Civil Revision Petitions have been filed as against the

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fair and decreetal order dated 20.03.2019 passed in I.A.Nos.1 & 2 of 2019 respectively, in O.S.No.26 of 2013 on the file of the learned Subordinate Judge, Thiruvallur, thereby allowing the petitions filed by the respondent to reopen and recall P.W.1 to mark the additional documents.

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The respondent filed suit in O.S.No.26 of 2013 as against the petitioners for partition. When both sides evidences were closed and the matter was posted for argument, the respondent filed petition to re-open and re-call P.W.1 for the purpose of marking certain important documents. Both applications were allowed on condition that the respondent shall pay a sum of Rs.1,000/- as cost within a period of 10 days from the date of the order viz., 20.03.2019 and adjourned the matter on 10.04.2019 for compliance. However, the respondent failed to comply the said condition. In the mean while, the petitioners/defendants challenged the said order in these Civil Revision Petitions.

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Page 2 of 6

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https://www.mhc.tn.gov.in/judis

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C.R.P.Nos.2324 & 2327 of 2019

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Heard Mr.Mohammed Fayaz Ali, learned counsel appearing for the petitioners. Though notice served on the respondent and name printed in the casuelist, no one is appeared either in person or through pleader.

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Though the respondent can very well file petition under Order 18 Rule 17 of C.P.C., it can be exercised by the Court either on its own motion or on an application filed by any of the parties, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of examination.

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In the case on hand, admittedly the respondent failed to ask important question and failed to mark important document. At the time of arguments, the respondent filed these petitions and allowing the petition is nothing but to allow to fill up lacunae. Therefore, the Court below ought not to have allowed the petitions, when the matter was posted for arguments. Hence, the order passed by the Court below is liable to be set aside.

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Page 3 of 6

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https://www.mhc.tn.gov.in/judis

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C.R.P.Nos.2324 & 2327 of 2019

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Accordingly, the common order dated 20.03.2019, passed in

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I.A.Nos.1 & 2 of 2019 in O.S.No.26 of 2013 on the file of the learned Subordinate Judge, Thiruvallur, is hereby set aside. The trial Court is directed to dispose the suit within a period of eight weeks from the date of receipt of a copy of this Order, if not already disposed of.

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In the result, both the Civil Revision Petitions are allowed

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Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.

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19.12.2022

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Internet : Yes Index : Yes/No Speaking order/Non-speaking order

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rts

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Page 4 of 6

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https://www.mhc.tn.gov.in/judis

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C.R.P.Nos.2324 & 2327 of 2019

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The Subordinate Judge, Thiruvallur.

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Page 5 of 6

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https://www.mhc.tn.gov.in/judis

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C.R.P.Nos.2324 & 2327 of 2019

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G.K.ILANTHIRAIYAN, J.

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rts

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C.R.P.Nos.2324 & 2327 of 2019 and C.M.P.Nos.15180 & 15205 of 2019

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19.12.2022

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Page 6 of 6

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https://www.mhc.tn.gov.in/judis

A.Zeenathunisa v. M.H.Dawood Sheriff

Case brief

What is this about?

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A.Zeenathunisa v. M.H.Dawood Sheriff

Case brief

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