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2019 Supreme(Mad) 2831
IN THE HIGH COURT OF MADRAS
C. SARAVANAN, J.
A. Sengoda Gounder - Appellant
Versus
P. Malliga and Ors. - Respondent
C.R.P. (PD) Nos. 2023, 2024 of 2015 and M.P. No. 1 of 2015
Decided On : 21-06-2019
Advocate Appeared:
For the Appellant :P. Valliappan, Advocate
For the Respondent:Zeenath Begum, Advocate
Headnote:
Constitution Of India,1950 - Article 32 – Civil Procedure Code,1908 - Section 11 and 141 - Order 23, Rule 1 – Criminal Procedure Code,1973 - Section 146 - Order 23 - Respondents filed an Application - Claim withdrawn by him - Petitions are directed against fair and Decretal Orders After evidence was closed the Respondents filed an Application reopen evidence/(Suit) and to cross-examine Petitioner (Defendant) - This was filed after the case was posted for arguments and after taking ten adjournments starting from and ending with - Petitioner thereafter withdrew said Applications - Thereafter Petitioner filed another Application for similar relief vide - These Applications were allowed by Court - Aggrieved by same Defendant has preferred present Civil Revision Petitions questioning Orders passed by Court Counsel for Petitioner drew my attention Section and stated that subsequent Application was barred Counsel also submitted that Applications filed reopening evidence and to cross-examine Petitioner Defendant as again was barred Order in view of withdrawal of earlier Application and therefore submitted that lower Court erred in allowing Application - Counsel for Petitioner drew my attention to Affidavit filed in support wherein there are no reasons given for filing above Applications except for stating that Suit was posted for arguments –Held, Court and thereby avails of a remedy given to him law he cannot be permitted institute a fresh Suit in respect of same subject-matter again after abandoning earlier Suit or by withdrawing it without permission of Court to file fresh Suit - Law confers upon man no rights or benefits which he does not desire - Whoever waives or abandons or disclaims a right will lose it - In order to prevent a litigant from abusing the process of Court by instituting Suits again and again on same cause of action without any good reason Code insists that he should obtain permission Court file a fresh Suit after establishing either of two grounds mentioned in sub-rule Rule Order principle underlying above Rule founded on Public policy but it not same as Rule of contained in Section Code which provides that no Court shall try any Suit or issue in which matter directly or substantially in issue has been directly or substantially in issue in a former Suit between same parties or between parties whom they or any them claim litigating same title in a Court competent try such subsequent statement it was unqualified and no reservation had been made - Order sub-rule Rule of Code of Civil Procedure provides that where Plaintiff either abandons any Suit or part of claim under sub-rule or withdraws from a Suit or part of claim without seeking any liberty to institute a fresh Suit in respect of subject-matter of such Suit or part of claim he shall be precluded from instituting any fresh Suit in respect of that subject-matter or that part of the claim Petitioner was cross-examined by Respondents and - There is no necessity to allow the further cross-examination - It is evident were earlier filed to drag on proceedings – Petition allowed
JUDGMENT :
C. SARAVANAN, J.
1. The present Civil Revision Petitions are directed against the fair and Decretal Orders, dated 27.2.2015 in I.A. Nos. 21 & 20 of 2015 in O.S. No. 86 of 2012. After the evidence was closed the Respondents filed an Application in I.A. Nos. 343 & 344 of 2014 to reopen the evidence/(Suit) and to cross-examine DW 1 namely the Petitioner (Defendant).
2. This was filed after the case was posted for arguments and after taking ten adjournments starting from 31.10.2014 and ending with 10.12.2014. The Petitioner thereafter withdrew the said Applications on 9.1.2015. Thereafter the Petitioner filed another Application for similar relief vide I.A. Nos. 20 & 21 of 2015 on 22.1.2015. These Applications were allowed by the Court.
3. Aggrieved by the same the Defendant has preferred the present Civil Revision Petitions questioning the Orders passed by the Court. Mr. P. Valliappan, the learned Counsel for the Petitioner drew my attention under Section 11 r/w Section 141 of C.P.C. and stated that subsequent Application was barred under law.
4. The learned Counsel also submitted that the Applications filed for reopening the evidence and to cross-examine the Petitioner (Defendant) as DW 1 again was barred under Order 23 of Cr.P.C. in view of withdrawal of the earlier Application and therefore submitted that the lower Court erred in allowing the Application. The learned Counsel for the Petitioner drew my attention to Affidavit filed in support of I.A. Nos. 20 & 21 of 2015 wherein there are no reasons given for filing the above Applications except for stating that the Suit was posted for arguments.
5. There are only four paragraphs in the Affidavit of which Paragraph (2) & (3) deal with the reasons and request of the Petitioner, which reads as under:
"(2) The case is posted today for arguments. The documents marked as Ex. A7 in the connected case in O.S. No. 294 of 2010 has to be marked on our behalf to prove our case through cross of DW 1. Hence, it becomes necessary to recall the respondent for the purpose of marking documents.
(3) Unless the Respondent is recalled for the purpose of marking documents on our behalf, we will be put to great loss and hardship.
6. The learned Counsel for the Petitioner also drew my attention to the decision of this Court in the case of S.K. Sreedhar v. R. Raghavan and another, 2015 (2) MWN (Civil) 230, wherein the Court has deprecated the practice of filing Application to reopen the evidence at the fag end of the case when the case is listed for arguments.
7. In the aforesaid decision, the Court held that it has no hesitation in coming to the conclusion that the Order passed by the Trial Court required interference and was therefore liable to set aside. There was also a very sketchy and skeletal Affidavit was filed like the one that was filed by the Petitioner (Plaintiff) in the present case.
8. The learned Counsel for the Petitioner relied on the following decisions:
(i) A. Thakurdas and another v. A. Venilal and others, AIR 1977 Kar. 60;
(ii) Anil Nahar and another v. Vijay Nahar, 2013 (4) CTC 554 (DB);
(iii) Abdul Sakoor Umar Sahigara v. Hanachand Dey, AIR 1972 Ori. 263;
(iv) Papinayakanahalli Venkanna and others v. Janadri Venkanna Setty (by L.Rs.), AIR 1985 Kar. 166;
(v) S. Narain Singh and another v. Ram Gopal Madan Lal and others, AIR 1981 Del. 88; and
(vi) Patrisha Sympli v. Nandita Das, AIR 2014 Megh. 13.
9. In A. Thakurdas and another v. A. Venilal and others, AIR 1977 Kar. 60, the Court held that the Concept of Res judicata has its genesis in the finality of litigation. It is fairly settled that the Principle of Res judicata can be invoked even in the Interlocutory proceedings arising out of the same Suit.
10. The Division Bench of this Court in Anil Nahar and another v. Vijay Nahar, 2013 (4) CTC 554 (DB), held that it is settled position of law that the decision rendered in Interlocutory Applications would amount to res judicata.
11. The Hon'ble Orissa High Court in Abdul Sakoor Umar Sahigara
