A court has the discretion to reopen evidence under Order XVIII Rule 17 of the CPC, but the party seeking to reopen the evidence must show that there is a good reason for doing so and that the evidence is likely to be material to the case.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.12.2023

CORAM:

THE HON'BLE MR.JUSTICE J. SATHYA NARAYANA PRASAD

C.R.P.Nos.1606 & 1607 of 2018

and

C.M.P.No.8737 of 2018

R.Vipul Kothari

... Petitioner in both C.R.Ps.

Vs.

1. Smart Finance,

Rep. by its Partners

Respondents 3 and 4.

2. M/.Horizon Learning Systems,

Rep. by its Partners Respondents 3 & 4.

3. subhramita

4. Sowmiyaranjan

... Respondents in both C.R.Ps.

COMMON PRAYER:- These Civil Revision Petitions are filed under

Article 227 of the Constitution of India against the order and decretal

order passed in I.A.Nos.925 & 926 of 2017 in O.S.No.6643 of 2012, on

the file of the VI Assistant Judge, City Civil Court, dated 03.03.2018.

For Petitioner

:

Mr.Avinash Wadhvan

(In both C.R.Ps.)

For Respondents

:

M/s.Subharmita

(In both C.R.Ps.)

https://www.mhc.tn.gov.in/judis

O R D E R

These civil revision petitions are filed challenging the order passed

in I.A.Nos.925 & 926 of 2017 in O.S.No.6643 of 2012 dated 03.03.2018

passed by the learned VI Assistant Judge, City Civil Court, Chennai,

allowing the applications filed by the respondents for reopening and

recalling the evidence of D.W1.

2. The learned counsel appearing for the petitioner submitted that

the revision petitioner is the plaintiff in the suit and the third defendant is

not an uneducated person but a medical practitioner. When she had

deposed in detail and also appended her signature in the document,

thereafter, it is not open to such a party to eschew the evidence because it

is against her.

3. The learned counsel further submitted that the third defendant

was aware as to what was reduced into writing while she was deposing in

English and also the fact that her Advocate had translated every portion

of her deposition into Tamil and only thereafter, she had signed the same.

Hence, the trial Court cannot allow the applications on the ground that

https://www.mhc.tn.gov.in/judis

the third respondent herein did not know to read and write Tamil.

4. The learned counsel further submitted that the suit is for

recovery of money and filing of the petitions to reopen and recall the

evidence of DW1 is only to drag on the proceedings as much as possible

and allowing such applications, which were filed under Order XVIII Rule

17 of C.P.C to reopen and recall D.W.1 evidence for further examination

in any event is contrary to law and the order of the Court below is liable

to be set aside. Hence, he prays for allowing these civil revision petitions.

5. The third respondent/third defendant appeared as

party-in-person and also filed an affidavit dated 09.10.2023 as directed

by this Court, in which it is stated that the fourth respondent is her

husband and she is authorised to represent him in the present case. The

third respondent also submitted that the second respondent (Horizontal

Learning Systems) is an unregistered partnership firm and it ceased to

carry on any activities since 30.04.2008, since then the activities are

carried out through the first respondent (Smart Finance), which is a

registered partnership firm.

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6. The third respondent further submitted that since all the

questions were asked in Tamil and the same was recorded by the Judge in

Tamil, she was not in a position to understand. Hence, she filed the

petition under Order XVIII Rule 17 of C.P.C. to reopen and recall D.W.1

evidence and therefore, the Court below has rightly allowed the

applications.

7. The third respondent further submitted that she is unable to

understand Tamil, official language in the Court below is Tamil, her

deposition has been translated into Tamil and was not aware of what was

reduced into writing while she was deposing in English. Only after

obtaining certified copies of the deposition, her present advocate

translated every portion of her deposition into English and only then, she

came to know that the verba