This judgment dismisses civil revisions challenging a Trial Court's order recalling a witness to prove the existence of a Will. The High Court held that recall was permissible as Defendant evidence was not closed and was necessary for a fair decision.
The Civil Revision Petitions are dismissed. Opportunity given to Respondents. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R.P.(MD).Nos.2270 and 2271 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 08.09.2023 Pronounced on 20.12.2023
CORAM
THE HON'BLE MRS. JUSTICE K.GOVINDARAJAN THILAKAVADI
C.R.P.(MD) Nos.2270 and 2271 of 2023
and
C.M.P.(MD)No.11696 of 2023
S.Rajasekaran ... Revision Petitioner in
both CRPs
Versus
1.Sithalakshmi
2.C.Uma ... Respondents in both CRPs
Prayer in CRP.(MD)No.2270 of 2023 : The Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the fair and decretal order dated 17.07.2023 passed in I.A.No.352 of 2020 in O.S.No.41 of 2019 on the file of the learned Subordinate Judge, Melur.
Prayer in CRP.(MD)No.2271 of 2023 : The Civil Revision Petition is filed
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under Article 227 of the Constitution of India, to set aside the fair and decretal order dated 17.07.2023 passed in I.A.No.353 of 2020 in O.S.No.41 of 2019 on the file of the learned Subordinate Judge, Melur.
For Revision Petitioner : Mr.S.M.Arun Kumar (in both CRPs)
For Respondents : Mr.S.Parthasarathy (in both CRPs) for Mr.M.Balakrishnan
ORDER
These revisions are preferred as against the order passed in I.A.Nos.352 and 353 of 2020 in O.S.No.41 of 2019 on the file of Sub Court, Melur.
Petitioner filed the above suit in O.S.No.41 of 2019 before the Sub Court, Melur for recovery of money. The Respondents are the legal heirs of one Arumugam, who had borrowed a sum of Rs.5,00,000/- on 13.01.2010 from the Petitioner by executing a promissory note, promising to pay the said amount along with interest at the rate of 18 % per annum. On 13.12.2010, when the Revision Petitioner insisted for repayment, the said Arumugam issued a post-dated cheque bearing No.812105 dated 03.03.2011 for a sum
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of Rs.3,00,000/- drawn on State Bank of India, Vinayaga Nagar Branch. In
the last week of February 2011, the said Arumugam requested the Revision Petitioner not to present the cheque and made assurances that he would settle the entire amount by June 2011. Unexpectedly, the said Arumugam fell ill and therefore, the Revision Petitioner was not insisting for repayment. In October 2011, the said Arumugam died leaving behind the Respondents as his legal heirs to succeed to his estate. Since the Respondents have inherited the estate of Arumugam, they are obliged to repay the amount borrowed by the said Arumugam. Since the Respondents did not repay the amount, the Revision Petitioner was constrained to file a suit in O.S.No.44 of 2013 which was renumbered as O.S.No.41 of 2019 after constitution of
the Sub Court at Melur. The Respondents appeared before the Trial Court and filed a written statement with false allegations.
case was nearing completion of trial, the Respondents moved application in I.A.Nos.352 and 353 of 2020 seeking permission to receive a Will dated 10.08.2011 allegedly executed by the said Arumugam in favour of the 2nd Respondent and certain other documents and also to recall D.W.1 to mark
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C.R.P.(MD).Nos.2270 and 2271 of 2023
the above document. The purpose of introducing the said document assigned
by the Respondent was that the property of the said Arumugam was bequeathed by him by means of a registered Will dated 10.08.2011 in favour of the 2nd Respondent, even before filing the suit and before the said property was attached by the Trial Court. The 2nd Respondent got the said property by means of the above said Will and that the reception of the said document was necessary.
Respondent for her failure to exercise due diligence in producing those documents earlier. Those documents were deliberately introduced at the fag end of the trial to prolong the proceedings of the suit. The Revision Petitioner also filed his counter in the above application. However, the Trial Court was pleased to allow the above application on 17.07.2023. Aggrieved by this, the Revision Petitioner preferred these present applications.
would contend that the power under Order 18 Rule 17 does not affect the inherent powers of the Court to pass the required orders to meet the ends of
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C.R.P.(MD).Nos.2270 and 2271 of 2023
justice to reopen the evidence for the purpose of further examination or cross examination or even for production of fresh evidence. Such power can also be exercised by the Petitioner at any stage of the suit even after closure of evidence. The basic purpose of Rule 17 is to enable the Court to clarify any position or doubt and the Court may, either Suo Motu or on the request of any party, recall any witness at any stage in that regard. No doubt, once the Court recall the witness for the purpose of any such clarifications, the Court may permit the party to access the Court by examining the witnesses for the purpose of clarifications required or permitted by the Court. However, the power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. The settled legal position under Order 18 Rule 17 read with Section 151 of Code of Civil Procedure is that, though it is a discretionary power of the Court, it has to be used only sparingly, and in case, the Court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground.
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C.R.P.(MD).Nos.2270 and 2271 of 2023
on the left out points is only impermissible in law. Therefore, the order
passed by the Trial Court is liable to be set aside. To support his contention, he has relied upon the case reported in 2016 0 Supreme(SC) 215 , in which it is held that witness cannot be recalled for further elaboration on the left out points.
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C.R.P.(MD).Nos.2270 and 2271 of 2023
sum of Rs.5,00,000/- from the Revision Petitioner and executed a promissory note in favour of the Revision Petitioner. Thereafter, the said Arumugam died leaving behind the Respondents as his legal heirs. Inspite of repeated demands, the Respondents failed to repay the loan amount. Therefore, the Revision Petitioner was constrained to file a suit in O.S.No.44 of 2013 which was renumbered as O.S.No.41 of 2019. The contention of the Respondents is that, the said Arumugam executed a registered Will on 10.08.2011 in favour of the 2nd Respondent/2nd Plaintiff and therefore, filed two applications in I.A.Nos.352 and 353 of 2020 for marking the said Will through D.W.1 and to recall D.W.1 for the said purpose. The above applications were allowed by the Trial Court against which the present Revisions are preferred.
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C.R.P.(MD).Nos.2270 and 2271 of 2023
witnesses with regard to the veracity of the alleged document.
20. 12.2023
mkn2 Index:Yes/No Speaking Order : Yes/No
K.GOVINDARAJAN THILAKAVADI,J.
mkn2
To
The Subordinate Judge, Melur.
ORDER MADE IN
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C.R.P.(MD).Nos.2270 and 2271 of 2023
C.R.P.(MD) Nos.2270 and 2271 of 2023 and C.M.P.(MD)No.11696 of 2023
20.12.2023
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3 issues framed by the court
Whether a witness can be recalled under Order 18 Rule 17 CPC when evidence is already closed to introduce new evidence regarding a Will.
Whether the Trial Court erred in allowing an application to recall a witness for the purpose of proving the existence of a Will affecting title.
Whether the Revision Petitioner's objection regarding protraction of proceedings is valid given the need for a fair adjudication.
Colour shows how this judgement treated each authority
2016 0 Supreme(SC) 215Referred¶52
3 provisions across 2 enactments
S.Rajasekaran
Sithalakshmi
C.Uma
K.GOVINDARAJAN THILAKAVADI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
