(Prayer in CRP No. 1239 of 2024 Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order and Decretal Order dated 22.02.2024 in IA No.6 of 2024 in OS No. 789/2015 passed by the XII Assistant City Civil Court at Chennai, and consequently, close the plaintiffs evidence in the above suit and pass such further or other orders

In CRP No. 1240 of 2024 Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the order and Decretal Order dated 22.02.2024 in IA No.7 of 2024 in OS No. 789/2015 passed by the XII Assistant City Civil Court at Chennai, and consequently, close the plaintiff’s evidence in the above suit.)

Common Order

1. These Civil Revision Petitions have been filed under Article 227 of the and the Constitution of India challenging the fair and decreetal order dated 22.02.2024 in IA Nos.6 & 7 of 2024 in OS No.789 of 2015 passed by the XII Assistant City Civil Court at Chennai, wherein the applications filed by the 1st respondent/plaintiff for reopening the plaintiff side evidence and to recall PW1 for marking two documents, came to be allowed by the Court below.

2. Heard the learned Senior Counsel for the petitioners and the learned counsel appearing on behalf of respondents 1 and 2 and carefully perused the materials available on record and this Court also carefully went through the order passed by the Court below.

3. The 1st respondent is the plaintiff who filed the suit in O.S.No.789 of 2015 seeking for the relief of declaration to declare the Settlement Deed dated 07.07.2010 executed in favour of 1st defendant as null and void and for permanent injunction.

4. It is quite apparent from the list of adjudications that has been placed before this Court that the suit filed in the year 2015 was not properly prosecuted by the plaintiff. In fact, the plaintiff, who examined himself as PW1, was never present before the Court for cross-examination and therefore, the evidence of PW1 was closed without cross-examination on 20.03.2018. Thereafter, the evidence was reopened and once again, PW1 was repeatedly absent before the Court below and hence, the Court once again closed the evidence of PW1.

5. An application was filed in IA No.7953 of 2018 to recall PW1 for crossexamination and PW1 was not present again and therefore, the evidence of PW1 was closed without cross-examination on 30.07.2018.

6. The Court below proceeded with the examination of DW1 and DW1 was examined in chief on 01.03.2019 and the documents were also marked. Thereafter, the matter was repeatedly listed for the cross-examination of DW1. The matter was repeatedly adjourned for continuation of the cross-examination of DW1 and in the meantime, several interlocutory applications came to be filed. This situation continued till 2023.

7. In the meantime, the defendants filed an application for eschewing the evidence of PW1, since PW1 did not subject himself to cross-examination. Immediately thereafter, the plaintiff filed IA Nos.4 and 5 of 2022 to reopen and recall the evidence of PW1. The Trial Court, by an order dated 27.03.2023, dismissed these applications. Aggrieved by the same, CRP Nos.3226 & 3232 of 2023 were filed before this Court. In order to afford an opportunity to the plaintiff, this Court passed an order on 16.11.2023 in the following terms:

                     12. As far as the present case on hand is concerned, the petitioner-s mother was suffering from some ailments and therefore, the petitioner had to leave to Delhi to take care of his mother. The petitioner had also produced medical records to that effect before the court below. It is the contention of the petitioner that the petitioner was partly cross~examined by the respondents / defendants and they had filed a petition to eschew the evidence of P.W.1, if that is done the petitioner would be put into great hardship.

                     13. Taking into consideration of the above said facts and circumstances of the present case and coupled with the fact that the petitioner-s mother was suffering from some ailments and that the petitioner had been to Delhi to take care of his mother and that the petitioner had also produced medical r ecords to that effect before the court below, this Court is of the view that the petitioner can be afforded one more opportunity to recall and reopen the P.W.1., evidence, as a last chance, on condition that the petitioner shall pay a sum of Rs.10,000/~ [Rupees Ten thousand only] to the respondents 1 and 2 [each Rs.5,000/~] within a period of two weeks from today, in the event of failure to deposit the said amount, the present petition shall stand automatically dismissed without further reference to this Court. Further, the court below is directed to conclude the evidence of P.W.1, within a period of one week from the date of commencement of the evidence and the parties are directed to complete the evidence within a period of one week from the date of commencing the evidence and the adjournment shall not be granted on any score.

8. Pursuant to the above order, the cross-examination of PW1 was completed on 10.01.2024. Thereafter, I.A.Nos.6 and 7 of 2024 came to be filed to reopen and recall PW1 on the ground that two documents, which were brought in as additional documents pursuant to the order passed in I.A.No.1 of 2020 were not marked. The applications were filed by the plaintiff before the Court below to enable him to mark these two documents, which are medical records.

9. The Court below allowed the applications and aggrieved by the same, these Civil Revision Petitions have been filed by defendants 1 and 2.

10. The main ground that was raised is that, even when the earlier applications were filed in IA Nos.4 and 5 of 2023 to reopen and recall the evidence of PW1, both the documents were available with the plaintiff and in spite of the same, the plaintiff did not seek to mark these two documents by continuing with the chief examination and on the other hand, he only sought for the cross-examination of PW1 on the side of the defendants. This Court, while passing the order in CRP Nos.3226 and 3232 of 2023, made it clear that the evidence of PW1 must be completed, within a period of one week and accordingly, the evidence of PW1was completed. It is contended that thereafter, PW1 cannot be allowed to file two more applications to reopen and to recall PW1 for marking the two documents, which are medical records.

11. The Court below, while dealing with the objections made by the petitioners has rendered a finding that the plaintiff attempted to mark the two documents by way of re-examination and it was opposed and permission was not granted to the plaintiff. The Court below also took into consideration the fact that the two medical records are important for the plaintiff to establish his case, since it involves the treatment that was taken by the deceased person. The Court below also took into consideration the fact that these two documents had already been filed as additional documents, which were allowed by the Court below.

12. This Court, while exercising its jurisdiction under Article 227 of the Constitution of India, has to see if the Court below has properly exercised its jurisdiction. The Court below has assigned reasons as to why the evidence of PW1 has to be reopened and recalled and those reasons do not suffer from any perversity warranting interference of this Court. It is true that these two documents could have been marked even on an earlier occasion when PW1 was recalled for cross-examination on the side of the defendants. However, the plaintiff was more concerned about his evidence being eschewed, since he was not subjected to cross-examination and therefore, was focussing on the crossexamination and lost sight of the two additional documents which were already allowed by the Court below. This mistake committed on the side of the plaintiff should not prove to be fatal to foreclose the plaintiff from marking the two documents, which, according to the plaintiff are vital to prove his case. These documents can be marked subject to relevancy, proof and admissibility and in any case, the defendants will get an opportunity to cross-examine PW1 on these documents.

13. While confirming the order passed by the Court below, this Court must also necessarily take note of the attitude of the plaintiff in this case and therefore, this Court is inclined to impose costs on the plaintiff. This Court is resorting to imposing costs on the plaintiff mainly on the ground that DW1 was examined in chief in 2019 and till date, DW1 has not been cross-examined only due to the attitude of the plaintiff not prosecuting the case effectively. Hence, the plaintiff has to pay some cost in this regard.

14. In the light of the above discussion, while confirming the order passed by the Court below, there shall be a direction to the 1st respondent/plaintiff to pay costs of Rs.20,000/- to the defendants, which will be handed over to the counsel appearing for the defendants, within a period of two weeks from the date of receipt of copy of this order. On complying with this condition, the Court below will permit PW1 to mark the two documents, subject to relevancy, proof and admissibility. It goes without saying that PW1 will be subjected to cross-examination on the side of the defendants. This process shall be completed, within a period of one week from the date on which the further evidence on the side of PW1 is let in.

15. The Court below is directed to expedite the matter, since the suit is of the year 2015 and the suit in O.S.No.789 of 2015 shall be disposed of, within a period of four months from the date of receipt of copy of this order.

16. In the result, these Civil Revision Petitions is disposed of in the above terms. No Costs. Consequently, the connected miscellaneous petition is closed.