(Prayer in CRP(MD).No.237 of 2023: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order in I.A.2/2022 in O.S.No.51/2019 passed District Munsif Court, Keeranur dated 22-11-2022 and thus render justice.

In CRP(MD).No.238 of 2023: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the fair and decreetal order in I.A.2/2022 in O.S.No.51/2019 passed by District Munsif Court, Keeranur dated 22-11-2022 and thus render justice.)

Common Order:

1. Heard Mr.K.P.Narayanakumar, learned Counsel for petitioners and Mr.V.R.Shanmuganathan, learned Counsel for respondent.

2. The defendants are the Civil Revision petitioners. The plaintiff presented O.S.No.51 of 2019, seeking the relief of permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the property.

3. The case of the plaintiff is that he is an engineer by profession. He had purchased the 'A' and 'B' schedule mentioned properties from the first defendant by way of a registered sale deed dated 21.08.2012. The first defendant had acquired the property by way of a registered sale deed dated 21.12.2010. The plaintiff urged that pursuant to the sale, he had taken possession and was in enjoyment of the property. According to him, the purpose of the said purchase was an investment in real estate on account of rapid increase in the value of the property. Since he was away in the State of Karnataka, the defendants called upon him to reconvey the property in their favour. They wanted the plaintiff to sell the property to them for a song. The plaintiff was not agreeable. Hence, the defendants approached the police authorities and attempted extortion to purchase the property.

4. In addition, they attempted to take forcible possession of the property on 06.06.2019, which the plaintiff successfully resisted. Fearing that they will yet again come and take forcible possession, the plaintiff approached the Court for the aforesaid reliefs.

5. Summons were issued to the defendants.

6. The defendants entered appearance. The defendants took a stand that though a sale deed had been executed, the defendants had never received any consideration for the same. The first defendant pleaded that sometime in 2013, she was mired in debts. Therefore, she approached one Arockiasamy, a retired teacher in the area and sought his assistance. Mr.Arockiasamy pointed towards the plaintiff and the first defendant approached him for money. The first defendant pleaded that she had borrowed a sum of Rs.50,00,000/- which, according to her, was at a high rate of interest i.e., at the rate of 60% per annum. As a security for the aforesaid amount, the defendants executed a sale deed for her property. The area covered under the deed was an extent of 3 acres and 93 cents. She pleaded that such a sale is the prevailing custom where a money lender gets a sale deed executed in his favour, as a security, for the amount paid as a loan.

7. Yet again, the defendants required amounts. Therefore, the first defendant approached the plaintiff for an additional sum of money. This time instead of securing a sale deed, the plaintiff obtained a general power of attorney for a property to an extent of 2 acres and 49 cents. Thereafter, another sale deed was executed for an extent of 8674 Sq.ft. This sale deed was executed on account of the fact that the plaintiff started harassing the defendants to pay an exorbitant amount of interest for the loans advanced.

8. She pleaded that all the documents, namely the two sale deeds and the power of attorney have been executed only for a collateral purpose and they were not meant to pass title from the first defendant to the plaintiff.

9. She urged that a few years later, the plaintiff brought one Girish, a person who had paid substantial amounts for the loan advanced by the plaintiff to the first defendant and called upon the plaintiff to execute a sale deed in favour of Mr.Girish. The first defendant also executed a sale deed.

10. Being frustrated about having to pay several huge amounts towards interest, she requested the plaintiff and Mr.Girish to return the documents to her, so that she would raise a loan on those documents and discharge the earlier loan. The plaintiff and Mr.Girish refused to part with the documents, and went back from honouring their words to treat the documents as a collateral for the loans given. Instead, they presented two suits, in O.S.No.481 of 2019 on the file of the District Munsif, Trichy and the present suit, O.S.No.51 of 2019 on the file of the District Munsif Court, Keeranur.

11. On the basis of these pleadings, issues were framed and the parties were sent for trial. The plaintiff examined himself as P.W.1. The defendants had also examined witnesses on their side and closed their evidence.

12. At that stage, the defendants filed an application in I.A.No.2 of 2022 seeking to reopen and recall the plaintiff for the purpose of examination. The reason that the defendants gave in support of the application is that, in order to give a quietus to the issue between them, the parties met and discussed at a playground in Kallakuzhi and also at the house of one, Adaikalam. During the said talks, the plaintiff is said to have conceded that the sale deed had been executed for collateral purpose and not for the purpose of transferring title. Further, this statement had been confirmed by the plaintiff during the course of conversation that he had with the defendants' son over a mobile phone. The first defendant wanted to bring forth this factum to the notice of the Court. She urged that she informed her lawyer about this crucial aspect only during the course of discussion, they had with regards to the litigation strategy.

13. The application was resisted by the plaintiff stating that the first defendant is attempting to drag on the matter and that the alleged meeting is a false one. It was further pleaded that the defendants are attempting to fill up the lacuna in the evidence and therefore, she should not be permitted to do so.

14. The learned District Munsif, Keeranur on consideration of the affidavit and counter, came to the conclusion that the application is untenable and dismissed the same. Consequently, the present revisions are filed.

15. The counsel for both sides reiterated the contentions that they had placed before the Trial Court. Mr.V.R.Shanmuganathan, referred to two judgements of Supreme Court in the case of:

                   (i) Vadiraj Naggappa Vernekar (D) Th. Lrs vs Sharad Chand Prabhakar Gogate, (2009) 4 SCC 410 and

                   (ii) Ram Rati vs Mange Ram (D) Thr Lrs. & Ors, (2016) 11 SCC 296.

16. I have carefully considered the submissions of both sides. I have gone through the records.

17. The consistent case of the defendants is that the two documents purporting to be documents of sale are not in fact documents of sale, but merely documents executed as collateral for the loans availed. The defendants want to cross-examine the plaintiff further on this aspect. Whether this will fall under the concept of filling up the lacuna as urged by Mr.V.R.Shanmuganathan?

18. Let us first see what a ''lacuna'' is. By its very nature, ''lacuna'' means a void''. It is a ''missing link'' in the chain of evidence. A fact that does not have foundational pleadings or evidence tendered earlier. This takes me to the meat of the matter, namely, what is meant by ''filling up of lacuna''. It means a vain attempt by one party to patch fundamental and inherent weaknesses in a case. When an attempt is made by parties to introduce new evidence unsupported by pleadings, then it amounts to ''filling up of the lacuna''. In case, the parties have already pleaded these aspects and merely wants to expand on the plea already taken during the cross examination, it cannot be treated as a case of filling up of lacuna. This is because a lacuna will exist only if the party had not originally pleaded the case nor had tendered some evidence, though a plea was taken but in a cinematic fashion, attempts to bring in new evidence and take the adversary by surprise. If the evidence sought to be brought on record will assist the court to reach a just conclusion, the Court may allow the same to be brought on record. If it is in the nature of bringing in new evidence and would take the adversary by surprise, like a trojan horse, a court should prevent it from entering the portals of the Court.

19. I have in a brief, extracted the pleadings of both the parties. One asserts title by virtue of two sale deeds and the other states that it was not a sale at all, but only a collateral transaction. The defendants, now want to bring forth evidence to show that the plaintiff himself had admitted during the course of a conversation before the Panchayathars and also in a conversation over a mobile phone that the sale deed was in fact not for a sale, but only executed for collateral purposes. This view does not take the plaintiff by surprise. At best, it is only a clarification of evidence on a matter which has already been pleaded and deposed earlier by the party.

20. It is the consistent case of the defendants that the first defendant had never executed a sale deed, as understood under Section 54 of the Transfer of Property Act, 1882. She seeks to cross-examine the plaintiff on the basis of some of evidences that she has procured in the due course. Perhaps, the evidence was not produced during the relevant time due to unintentional slip. The affidavit in support of the application to reopen and recall mentions the place where the alleged settlement talks had taken place and also about the conversation over the mobile phone. These aspects ought to have been brought before the Court when the plaintiff was originally cross examined.

21. The Code of Civil Procedure is not a tool meant to cut the feet to fit the shoes. It is not an inflexible rack to twist and torture a litigant. It is a Code of fairness. The purpose of engrafting in itself the provision of Order XVIII Rule 17 is to enable a party, who has perhaps, due to human error or oversight in the case management, forgot to putforth certain essential questions. The Code is not insensitive to such instances. In this case, the defendant has conceded that she informed the advocate only during the course of discussion. In such circumstances, this Court has to be alive that the revision arises from a mofussil area and one cannot expect a litigant to be a astute, as case in the metropolitan cities. The first defendant, had been under the impression that these evidences were not essential and did not inform the counsel initially. Soon thereafter, when she informed her lawyer, it is then on his advice, this application came to be filed.

22. It is not as if the defendants are attempting to project a new case. She merely wants to clarify the position that she had taken at the earliest point of litigation. Processual laws, by their very nature, are subservient to the substantive rights of parties. A hyper technical approach, which would stand in the way of a party, to bring forth evidence before the Court should never be adopted. I would add here that the Code of Civil Procedure not only contemplates party from letting in evidence during the course of trial, but also in the Appellate stage by invoking Order XLI Rule 27 of the Code. This shows that a Court is called upon to receive evidence, if it is based on pleadings at any stage, where the evidence so brought about would be for a substantial cause and in the interest of justice. This Court remembers the oft-repeated statement that procedural laws are handmaid of justice and not its mistress.

23. The learned Trial Judge should have considered the application filed by the first defendant in the light of the defense taken by her in the written statement. If the evidence comes on record, it would assist the Court to conclude whether the document which had been executed, was in fact, for a collateral purpose. Thus, it ought not to have been shut out. This court would further refer to Order VIII Rule 1A(4) of the Code of Civil Procedure that enables a party to confront a plaintiff at any stage even without filing an application under Order VIII Rule 1A(3) to support the aforesaid conclusion.

24. In the light of the above discussion, since the defendants have already taken the plea and it is not a new one, it cannot be seen as an attempt to fill up lacuna, that is to patch up fundamental and inherent weaknesses in the case, but merely an expansion of the existing plea taken and evidence tendered. This court is inclined to exercise the jurisdiction in favour of the first defendant.

25. Insofar as the citation referred by Mr.V.R.Shanmuganathan is concerned, a perusal of judgement in the case of Ram Rati vs Mange Ram (D) Thr Lrs. & Ors reported in (2016) 11 SCC 296 shows that the power to reopen and recall cannot be invoked to fill up the omission in the evidence already led by a witness. Here is a case where the defendants are not seeking reopening of the evidence for the purpose of letting in fresh evidence. They are only seeking to cross examine the plaintiff on certain crucial aspects. Hence, this judgment is not applicable. The Court also held that a trial Court retains the power to recall a witness, and at the same time it should ensure that such power is not exercised in a manner which will lead to protraction of the trial. Thus, this Court is of the view that the judgement has not closed the doors on exercise of discretion in allowing such applications. The Court should ensure that the trial concludes at an early date.

26. Next, with respect to the Judgement in the case of Vadiraj Naggappa Vernekar (D) Th. Lrs vs Sharad Chand Prabhakar Gogate reported in (2009) 4 SCC 410, the Supreme Court pointed out that a Court has the power to recall any witness either on its own motion or on application of the parties, but should not be permitted to fill the lacuna in the evidence already recorded. This shows that Order XVII Rule 17 should not be used to patch up fundamental and inherent weakness in a case. The facts of this case, as I have already noted that the defense taken by the Civil Revision petitioners is not something new or an attempt to fill up the inherent weakness in the case, but merely strengthening the plea that has already taken.

27. Mr.Shanmuganathan fears that the observations made in this order will affect him at the time of arguments in the suit. Such fear is absolutely unfounded. I have merely extracted the respective pleadings in order to point out the respective cases of the parties. I have not, nor can I give any observation on the merits of the case while dealing with the revision petitions. At the time of pronouncement of the judgement, both the counsels pointed out that pending revisions, the suit has been transferred from the file of the District Munsif Court, Keeranur to District Munsif Court, Viralimalai and renumbered as O.S.No.45 of 2024. The District Munsif, Viralimalai would obviously take into consideration this order and ensure compliance thereof as directed by this Court.

28. Mr.Shanmuganathan states that the plaintiff will present himself before the trial Court to be cross-examined on 16.03.2026. As the suit has been pending for several years, the Court shall permit the first defendant to cross examine the P.W.1 on 16.03.2026 or on a subsequent date. The evidence of the plaintiff must be closed in any event on 17.03.2026. The arguments of the parties must be heard and judgement must be pronounced on or before 30.04.2026. For Compliance Report by the Learned District Munsif, Keeranur, post the matter on 03.06.2026.

29. With the above observations, these Civil Revision Petitions are allowed, the order passed in I.A.No.2 of 2022 in O.S.No.51 of 2019 dated 22.11.2022 on the file of District Munsif Court, Keeranur is hereby set aside. No costs. Consequently, connected miscellaneous petition is closed.

30. For reporting compliance, post on 03.06.2026.