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2018 Supreme(Mad) 3101
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. THARANI, J.
RAMASAMY — Appellant
Vs.
M.K. KANDASAMY — Respondent
Civil Revision Petition No. 1917, 1918 of 2015, Miscellaneous Petition No. 1 of 2015
Decided on : 29-10-2018
Advocate Appeared:
Prabha, Adv., V. Balaji, Adv.
The principle of estoppel applies when a party receives costs under protest or without prejudice, preventing them from challenging the trial court's orders.
Headnote:
specific performance - recalling and reopening of evidence - [Vadiraj Naggappa Vernekar v. Sharad Chand Prabhakar Gogate (2009) AIR SC 1604, K.K.Velusamy v. N.Palanisamy (2011) 7 MLJ 612 (SC), P. Mohan (Deceased) and another v. M.K.Azhagiri and Others (2013) 8 MLJ 51, S.K.Sreedhar v. R.Raghavan and another (2015) 2 CTC 602, M/s. Fast Cool Services by Partners and two others v. P. Shanthakumari (2000) 3 CTC 257]
Fact of the Case:
The respondent filed a suit for specific performance against the petitioner, alleging failure to execute a sale deed. The respondent sought to reopen the trial and recall a witness. The trial court allowed the petitions on payment of costs, which the petitioner received.
Finding of the Court:
The court found that the petitioner's receipt of costs estopped them from challenging the trial court's orders. Consequently, the revision petitions were dismissed.
Issues: The main issue was the admissibility of the petitions to reopen the trial and recall a witness, and the estoppel arising from the petitioner's acceptance of costs.
Ratio Decidendi: The court held that the petitioner's acceptance of costs estopped them from challenging the trial court's orders, citing the principle of estoppel.
Final Decision: The Civil Revision Petitions were dismissed, and no costs were awarded. The Miscellaneous Petitions were closed.
R. Tharani, J.
Heard Mrs.Prabha for Mr.S.Gokul raj, learned counsel appearing for the petitioner and Mr.V.Balaji, learned counsel appearing for the respondent.
2. These petition have been filed against the fair and decreetal orders dated 14.07.2014 made in I.A.Nos.436 and 437 of 2014 in O.S.No.229 of 2010 on the file of the learned Principal Sub Judge, Karur.
3. The petitioner herein is the defendant and the respondent herein is the plaintiff in the suit. The respondent herein has filed a suit in O.S.No.29 of 2010 before the learned Principal Sub Judge, Karur for specific performance. The respondent herein has filed petitions in I.A.Nos.436 and 437 of 2014 before the learned Principal Sub Judge, Karur for reopening the trial and for recalling D.W.1 for further examination and the petitions were allowed subject to payment of Rs. 250/- (Rupees Two Hundred and Fifty only) to the respondent. Against the order, the petitioner has come forward with the revision petition.
4. The case of the plaintiff/respondent herein is that there was sale agreement between the plaintiff/respondent and the defendant/petitioner. The price was fixed as Rs. 6,10,000/- (Rupees Six Lakhs and Ten thousand only) There was an oral sale agreement. Three months time was fixed for completion of the sale. The respondent herein is ready and willing to perform his part of the contract. The petitioner herein has not obtained patta in his name and did not come forward to measure the property. The petitioner herein has failed to execute the sale deed. On 13.03.2010, the petitioner met the respondent and he was told that there was a problem in obtaining the separate patta and promised that he would execute sale deed. After getting a separate patta during the first week of November 2016, the respondent herein came to know that the petitioner herein was making steps to alienate the suit property to third persons. The respondent herein came to know that the petitioner herein is having a son and two daughters who claimed share in the property in a partition suit in O.S.No.120 of 2010. The respondent herein issued legal notice and has filed the suit in O.S.No.229 of 2010 for specific performance.
5. On the side of the petitioner, it is stated that the respondent herein has filed two I.A. Petition. One is for recalling D.W.1 and the other is for reopening the evidence and that without assigning reasons, the trial Court has allowed the petition on payment of cost and that after the closure of the evidence, at the stage of argument, the respondent has filed these petitions only to drag on the proceedings and these petitions are liable to be dismissed.
6. The learned counsel appearing for the petitioner relied on the Judgment passed by the Hon'ble Supreme Court in the case of Vadiraj Naggappa Vernekar v. Sharad Chand Prabhakar Gogate reported in, (2009) AIR SC 1604, which reads as follows:
"Recalling of such witness for giving further evidence regarding facts not mentioned in affidavit-Held not permissible"
7. The learned counsel appearing for the petitioner relied on the Judgment passed by the Hon'ble Supreme Court in the case of K.K.Velusamy v. N.Palanisamy reported in, (2011) 7 MLJ 612 (SC), which reads as follows:
"Neither trial Court nor High Court considered question whether it was fit case for exercise of discretion under Section 151 or Order 18 Rule 1 of Code-Order of High Court and trial Court dismissing application under Section 151 of Code set aside"
8. The learned counsel appearing for the petitioner relied on the Judgment passed by this Court in the case of P. Mohan (Deceased) and another v. M.K.Azhagiri and Others reported in, (2013) 8 MLJ 51, which reads as follows:
"Application to recall and reopen evidence of witness and to mark documents cannot be maintained at belated stage of conclusion of trial."
9. The learned counsel appearing for the petitioner relied on the Judgment passed by this Court in the case of S.K.Sreedhar v. R.Raghavan and another reported in, (2
