2021 Supreme(Mad) 310

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.T. ASHA, J.
Vijay Nahar – Appellant
Versus
Anil Nahar & Another – Respondent
A. Nos. 798, 799, 802, 803, 805 & 807 of 2019 in C.S. No. 86 of 2004
Decided On : 26-03-2021

Point of Law: applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered

Headnote:

Code of Civil Procedure, 1908 – Order IV Rule 1, Order XXIV, Order VII Rule 1, Section 151, Order VII Rule 14, Order XIV Rule 8, Order 18 Rule 17 – Suit for Declaration – Civil Suit filed under Order IV Rule 1 and Order XXIV of Original Side Rules read with Order VII Rule 1 of Code of Civil Procedure praying for declaration declaring plaintiff’s half share in suit schedule properties, for appointing a Commissioner for division of properties and allot half share in suit schedule properties by metes and bound, for an injunction restraining defendant, their men, agents, assignees from encumbering or alienating suit schedule properties, for appointing an Advocate Commissioner to ascertain mean profits in respect of suit schedule properties and direct 1st respondent to render accounts of same and direct payment of such sum ascertained towards mean profits to the plaintiff for three years from the date of filing of suit with costs – Plaintiff had filed C.S. for declaring his 1/2 share in the suit schedule properties and for appointment of an Advocate Commissioner to divide same by metes and bounds and to allot his 1/2 share – Plaintiff has also sought for injunction, restraining defendants from alienating or encumbering suit schedule properties –

Finding of the Court:

It is very clear that though Section 151 gives a discretionary power inherent in every Court, however, such discretion has to be exercised with caution and used with circumspection. – Provisions cannot be used to abuse the process of Court. – Document that the applicant seeks to file is the Forensic Reports of an independent Expert. – This Report is got after the trial in the suit had been concluded and when the suit was posted for arguments. – Applicant was very much aware about the transfer of the shares in favour of the 1st defendant and his family members. – Documents under which the 1st defendant and his wife had purchased the shares was filed along with the Written Statement. – It was very well open to the plaintiff to have undertaken this exercise even prior to the commencement of the trial. – Prayer contained in A. is once again highly belated, particularly, when plaintiff was aware of these documents even prior to the filing of the suit. – This is obvious from account of the fact that the plaintiff has been able to obtain the certified copies of the documents from the Registrar of Companies in the year 2004 which clearly shows that he has conducted a search of the documents relating to the 2nd defendant Company. – Plaintiff cannot at this stage re-open the entire evidence and start the suit afresh to fill up his omissions and lacunae and try to undo the admissions that the defendants have got during the cross examination of the plaintiff. – Plaintiff is insisting on these applications being ordered only on the ground that some documents have been produced only during trial. – However, the plaintiff had knowledge about these documents even prior to the filing of the suit. – It is not documents which have thrown a surprise to the plaintiff. – Court has repeatedly held that Courts should constantly endeavour to follow such a time schedule. – If same is not followed, the purpose of amending several provisions in the Code would get defeated. – In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. – Court is satisfied that the plaintiff has filed those two applications before the trial Court in order to overcome the lacunae n the plaint, pleadings and evidence. – It is not the case of the plaintiff that it was not given adequate opportunity. – In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. – No compelling or acceptable reasons have been placed before court. –

Result: Applications Dismissed