Allowed

S.Umaiyorubagam v. Saravanakumar

Madras HC4 Jul 2022CRP(MD)/212/2020

Case brief

AI extract

What is this about?

The High Court allowed two civil revision petitions challenging an order that permitted additional evidence and reopened a suit for forensic analysis of a disputed photograph. The court set aside the lower order for failing to make a prima facie finding on the tampering allegation and directed the expunging of ex-parte remarks against the plaintiff's advocate.

What did the court decide?

The impugned common order dated 07.01.2020 is set aside; the trial court remarks against the petitioner's advocate are expunged; and the main suit is directed to be disposed of within two months.

S.Umaiyorubagam Vs Saravanakumar — Property and Title | Madras HC (2022)

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CRP(MD)Nos.212, 213 of 2020

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 04.07.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE B.PUGALENDHI

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CRP(MD)Nos.212, 213 of 2020

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S.Umaiyorubagam : Petitioner in both CRPs

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Vs.

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Saravanakumar : Respondent in both CRPs

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COMMON PRAYER: Civil Revision Petitions filed under Article 227 of the Constitution of India to call for the records pertaining to the fair and decreetal orders passed by the Additional District & Sessions Court, Srivilliputhur, in I.A.Nos.124, 125 of 2019, respectively, in O.S.No.93 of 2015, dated 07.01.2020 and set aside the same.

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For Petitioner : Mr.H.Arumugam For Respondent : Mr.M.Jothi Basu [In both CRPs]

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COMMON ORDER

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These civil revision petitions are filed as against the common fair and decreetal order dated 07.01.2020, passed by the learned Additional District & Sessions Judge, Srivilliputhur, in I.A.Nos.124, 125 of 2019, respectively, in O.S.No.93 of 2015.

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2.The respondent / defendant has filed I.A.No.124 of 2019 under Order 18 Rule 17 and Section 151 CPC to let-in additional evidence and filed I.A.No.125 of 2019 under Section 151 CPC to reopen the case. The respondent has made an allegation that the photo affixed in the document Ex.B1 was tampered with by the Advocate for the plaintiff with the help of the Court Staff. The trial Court, by common order dated 07.01.2020 allowed the applications and directed to refer the document Ex.B1 for scientific analysis.

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3.The suit in O.S.No.93 of 2015 is filed for recovery of money based on a pronote. The evidence were completed and the suit stands posted for judgment. At that stage, the applications are filed by the defendant to reopen the suit and to let-in additional evidence. The trial Court has also allowed the applications, accepting the https://www.mhc.tn.gov.in/judis allegations of the petitioner, without ascertaining the averments

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CRP(MD)Nos.212, 213 of 2020

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made therein. The trial Court has also made a casual observation that from the date of marking of the document Ex.B1, there are several incidents as against the Court staff and referred the document Ex.B1 to the forensic lab that it would not cause any prejudice to the plaintiff.

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4.Learned Counsel appearing for the petitioner submitted that the impugned order has been passed against the provisions of Order 18 Rule 17 CPC. In fact, the respondent / defendant has not even taken any steps to disprove his signature found in the pronote. For the purpose of deciding Ex.B1, the suit ought not to have reopened.

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5.Learned Counsel appearing for the respondent submitted that the attestor of the pronote, PW2, has identified some third party as the defendant and those photographs were marked as Ex.B1. However, the photograph which was already marked has been changed with the defendant's photo by the plaintiff's Advocate and therefore, they have taken out these applications to reopen the case for additional evidence.

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6.Heard the learned Counsel appearing on either side and perused the documents placed on record.

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7.Admittedly, the interlocutory applications were filed for reopening and for further evidence at the stage when the main suit was posted for judgment. The document Ex.B1 is a white paper, in which, three photos were affixed. These photos have been cited to PW2 at the time of his examination to identify the defendant. The defendant has attempted to disprove the case of the plaintiff by raising a question to PW2 that the photo affixed in the white paper is not the defendant. But PW2 has confirmed that the person cited (third photograph) is the defendant. This piece of white paper with three photographs was marked as Ex.B1. The photo selected by PW2 (third photograph) was given a tick mark by the learned Judge at the time of recording the evidence.

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8.The defendant is now taking a stand that his photo is not in Ex.B1 at the time of marking the document and that PW2 has selected a wrong person, by name Venkatesh at that time. However, the photo has now been tampered with by the plaintiff's Counsel and the defendant's photo has been pasted subsequently.

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9.This Court has verified from the trial Court as to whether the Court has ascertained the veracity of the allegation made by the defendant. It appears that the Court has allowed the application in a mechanical manner, without ascertaining the allegations and also made a causal observation as against the Court staff. No prima facie view was recorded by the trial Court that the photo appears to have been tampered with. No acceptable reasons or causes have been made out for accepting the application at the stage when the suit was https://www.mhc.tn.gov.in/judis posted for judgment.

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CRP(MD)Nos.212, 213 of 2020

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10.As has been held by the Hon'ble Supreme Court in Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate , reported in (2009) 4 SCC 410 , the power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that the recall and reexamination would not cause any prejudice to the parties.

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11.In fact, this Court is unable to understand as to how this type of white papers have been marked as a document. Be that as it may, it is for the trial Court to appreciate the same at the time of marking the evidence. However, as rightly pointed out by the petitioner's Counsel, the respondent has not even taken any steps to disprove his signature in the pronote.

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12.For the foregoing reasonings and discussions, this Court is inclined to interfere with the orders impugned. Accordingly, both the civil revision petitions are allowed and the common order dated 07.01.2020, passed by the learned Additional District & Sessions Judge, Srivilliputhur, in I.A.Nos.124, 125 of 2019, in O.S.No.93 of 2015, is hereby set aside.

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13.At this juncture, learned Counsel for the petitioner, by relying upon the decision of this Court in AIR 1966 Madras 161 [ Amalgamated Commercial Traders Pvt Ltd v. C.Hariprasad ], prayed for expunging the remarks made by the learned Additional District & Sessions Judge, Srivilliputhur, as against the plaintiff's Advocate. Since this Court has already held that the trial Court has made a causal observation as against the Court staff and the plaintiff's Advocates without ascertaining the allegations and without recording a prima facie view in that regard, the said observation made by the trial Court is hereby expunged as per Section 151 CPC. (*)The trial Court is directed to dispoe of the main suit in O.S.No. 93 of 2015, within a period of two months from the date of receipt of a copy of this order There shall be no order as to costs.

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Sd/-

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Assistant Registrar (As)

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(*)Corrected asp per the order of this court dated 29/07/2022 made in CRP(MD).No. 212 of 2020

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// True Copy //

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/08/2022 Sub Assistant Registrar(CS)

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