Applications to reopen and recall should not be allowed at a belated stage without proper pleading, and there is a need for continuous trial and avoidance of interim measures like reopening and recalling, unless in compelling and acceptable reasons.

1. Aggrieved by the common order dated 17.7.2014 passed by the III Additional District Judge, Thoothukudi, in I.A. Nos. 72 to 74 of 2014 wherein and by which the petitions filed to reopen, recall D.W.1 and to receive document respectively, were dismissed, the defendants 1 to 5 in O.S. No. 61 of 2012 have come up with the instant Civil Revision Petitions.

2. From the materials available on record, it is seen that in a suit for partition of the year 2012, trial was completed on 06.3.2014 and the suit was posted for arguments on 26.3.2004. While so, the defendants had filed three applications in I.A. Nos. 72 to 74 of 2014 for reopening, recalling D.W.1 and for receiving the document in evidence respectively. The document sought to be marked is a Will written by one Shanmughavel Nadar executed on 05.4.1972. The certified copy of the Will was sought to be marked on the ground that the original Will is not available. For such purpose, the other applications to reopen and recall D.W.1 were filed.

3. According to the defendants, the Will was executed by one Shanmughavel Nadar which had come into force after his death. As per the same, it devolved on his male heirs and thereafter, to his grand children. It is stated that based on the said Will, a settlement deed was executed by the first defendant on 30.11.2012. Stating that the original Will is lost, the defendants wanted to mark the certified copy of the said Will. The said applications were opposed by the plaintiffs contending that loss of the Will is not even pleaded in the written statement and since the applications are filed at belated stage after the suit itself has been posted for arguments, the same cannot entertained.

4. The learned III Additional District Judge, Thoothukudi, after consideration of the facts and evidence, dismissed the applications holding that the petitioner has filed the petitions at belated stage. Aggrieved by the same, the defendants are before this Court with the present Civil Revision Petitions.

5. Heard the learned counsel appearing for the revision petitioners as well as the learned counsel for the respondents and perused the records.

6. The only question that has to be decided in these revision petitions is whether the applications to reopen, recall D.W.1 and receive the document can be allowed.

7. To decide the point in issue, at the outset, it would be relevant to refer to the written statement filed on behalf of the defendants in the suit. It is true that in paragraph 13 of the written statement, there is a mention about the said Will. But it only states that Shanmughavel Nadar had executed a Will on 05.4.1972 which was registered as document No. 8/1972 and the said fact was within the knowledge of the plaintiffs. It is to be noted here that other than this, the defendants have not stated anything to the effect that the original Will is lost or the attestors are not available or even that they wanted to mark only the certified copy of the document. The trial Court also had given a finding that the defendants had not marked the copy of the Will along with the written statement. Even in the cross-examination of P.W.1, there was no suggestion about the loss of the Will. D.W.1 though had deposed that he would file copy of the alleged Will, had not stated that the original was not available and it was lost. D.W.2 also had not stated anything in his evidence about the loss of the Will but had denied only the suggestion that it was with his mother. Based on the above depositions of the parties, the trial Court had come to the conclusion that without even pleading about the loss of the Will or deposing to that effect in the evidence, the defendants cannot, at the belated stage when the case was posted for arguments, file these applications to reopen and mark the document. It is pertinent to point out that the suit was filed in the year 2012 and the defendants had consciously pleaded about the registration of the Will but deliberately omitted to eit