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2011 Supreme(Mad) 3662

High Court of Judicature at Madras
K. VENKATARAMAN
R. Jayakanthan
Versus
Tmt. B. Sritha
C.R.P. (PD) Nos.1558 & 1559 of 2011 & M.P.No.1 of 2011 in C.R.P.(PD) No.1558 of 2011
Decided on : 17-08-2011

Advocates appeared:
For the Petitioner:Mr. A. Palaniappan, Advocate.
For the Respondent: Mr. P. Wilson, S.C.

Headnote:CIVIL PROCEDURE CODE, 1908 - ORDER 18, RULE 17 - Recall and Re-open petition - Maintainability - Respondent/Wife filed both applications after entire evidence - Both petitions were allowed by Trial Court - In CRP, Held, reasons set out in the petitions are (i) PW2 evidence is contradicts with evidence of PW1 (ii) while cross examination of Respondent/wife petitioner side marked some document through this respondent which is not set out in pleadings (iii) petitioner filed Crl.O.P. before High Court against his advocate and on that he made some admissions - All these are subsequent events and important points were omitted to be examined - Reasons stated by respondent cannot be accepted - (i) contradicted evidence can be taken as advantage by respondent (ii) Cross examination of PW1 without pleading can be agitated by her counsel at that time itself - Respondent not stated in her petition what documents are marked through her and when she came to know about Crl.O.P. - Respondent gave sufficient opportunities to cross examine PW1 who was cross examined in length by her counsel - Reasons stated to re-call and re-open is not maintainable - Trial court passed orders and allowed applications without considering that this respondent is dragging on proceedings by filing applications when the matter is reaching finality - Cannot be appreciated - CRP allowed.

       Result: CRP allowed.

JUDGMENT :-

These revision have been filed challenging the order of the learned Subordinate Judge, Pollachi dated 8.4.2011 allowing the applications filed by the respondent herein made in I.A.Nos.53 and 54 of 2010 in O.P.No.79 of 2010, one to re-open the petitioner's side for further cross examination of P.W.1 and another to re-call P.W.1 for further cross-examination.

2. The petitioner, herein has originally filed O.P.No.2268 of 2008 before the learned Judge of the Family Court at Chennai for dissolution of the marriage between himself and the respondent which took place on 11.7.2007. The said O.P. was transferred to the file of the learned Subordinate Judge, Pollachi and renumbered as H.M.O.P.No.79 of 2010. The respondent also filed another petition in H.M.O.P.No.23 of 2009 against the petitioner herein before the learned Subordinate Judge, Pollachi for restitution of conjugal rights. Both the O.Ps. have been tried together, by an order passed by this Court.

3. After the entire evidence was over in O.P.No.79 of 2010, the respondent has filed the applications referred to above and the same were allowed by the learned Subordinate Judge, Pollachi, by an order dated 8.4.2011. The said order is canvassed through this civil revision petition.

4. I have heard Mr.A.Palaniappan, learned counsel appearing for the petitioner and Mr.P.Wilson, learned Senior Counsel appearing for the respondent.

5. The reasons for filing such applications were set out in paragraphs 6, 7 and 8 of the affidavit filed in support of the petition in I.A.No.53 of 2011, which are extracted here under:-

"6. However, pursuant to the above, P.W.2 was cross examined and it is crystal clear that his evidence contradicts with P.W.1's evidence and hence, to clarify the same, P.W.1 has to be re-examined.

7. I also submit that thereafter, I filed Proof Affidavit. The counsel for P.W.1 made a length cross examination. While cross examining me I was asked many questions, totally on different stand, which are not even in any of his pleadings of his petition, his counter and his proof affidavit. Further, certain documents were marked through me, though the same is not in any of his pleadings. Consequent on marking of such documents, it is necessary to re-examine P.W.1.

8. I also state that very recently I came to know that petitioner has filed Crl.O.P.No.20480 of 2010 before Hon'ble High Court against his Advocate, wherein he has made certain admissions. From the same, I understood that the petitioner has taken various steps to somehow get me divorced, through back door. Hence, I obtained a copy of the same from Hon'ble High Court with great difficulties which I have filed before this Hon'ble Court along with additional proof affidavit. These were not known to me earlier and hence, P.W.1 could not be examined on these points earlier. There are other subsequent events also, which I have come to know now. It has also been noted that certain important points were omitted to be examined, which are vital to prove my case."

6. Thus, on three counts the respondent has filed the applications, which are --

(i) P.W.2 in his cross examination contradicted the evidence given by P.W.1 and hence, P.W.1 has to be re-examined.

(ii) The respondent was cross examined by P.W.1's counsel at length and several questions were asked, which does not form part of the pleadings. Further, certain documents were marked through her, though the same is not in any of the pleadings of the petitioner herein. Hence, it has necessitated the respondent to re-examine P.W.1.

(iii) Very recently, the respondent herein came to know that the petitioner has filed Crl.O.P.No.20480 of 2010 before this Court against his Advocate wherein he made certain admissions. From the said admissions, she understood that the petitioner had taken various steps to somehow get divorce through back door. She has obtained a copy of the said O.P. and has filed the same along with the additional proof affidavit. Hence, P.W.1 has to be examin

















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