CRP. No. 4045 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.03.2023

CORAM

THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI

Civil Revision Petition No. 4045 of 2022

in

O.S.No.2500 of 2020

S.Annamalai

... Petitioner

Versus

1.Dharmachand Jain

2.R.Balachandar

... Respondents

Civil Revision Petition filed under Article 227 of Constitution of India,

praying to set aside the docket order dated 22.09.2022 made in memo filed by

the 1st respondent / 1st defendant in O.S.No.2500 of 2020 passed by the

learned XXIII Additional City Civil Court, Chennai.

For Petitioner

:

Ms. S. Menaka

For Respondents

:

Ms. R.V. Gayatri

for Mr.P.B.Ramanujam for R2

:

No representation for R1

O R D E R

The Revision petitioner is challenging the docket order dated

22.09.2022 made in memo filed by the 1^st respondent/1^st defendant in O.S. No.

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CRP. No. 4045 of 2022

2500 of 2020, passed by the learned XXIII Additional City Civil Judge,

Chennai.

2.

Heard, Ms. Menaka, learned counsel appearing for the petitioner

and Ms. R.V.Gayathri for Mr. P.B. Ramanujam, learned counsel appearing for

the second respondent. Notice has been served but there is no representation

on behalf of the first respondent.

3.

The second defendant in O.S. No. 2500 of 2020 is the Civil

Revision Petitioner herein. The first respondent in this Civil Revision Petition

is the first defendant in the said suit. The suit in O.S. No.2500 of 2020 was

filed by the second respondent in this Civil Revision Petition.

4.

The suit in O.S. No. 2500 of 2020 was filed for a declaration to

declare that the mortgage deed dated 13.02.2012 registered as document No.

757 of 2012 on the file of Sub-Registrar, Virugambakkam stands redeemed

and to direct the first defendant to return the original title deeds relating to the

sale deed dated 15.02.1982 bearing document No. 661 of 1982 registered on

the file of Sub-Registrar, Kodambakkam and Patta of the plaintiff pertaining to

the suit property and for costs.

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CRP. No. 4045 of 2022

5. In the suit, the first defendant/first respondent in this Civil Revision

Petition has filed his written statement. Similarly, the second

defendant/revision petitioner herein also filed the written statement

repudiating the plaint averments. When the trial in the suit commenced and

PW1 was examined in chief, a memo was filed by the first defendant in the

suit/first respondent in this Civil Revision Petition to defer the cross-

examination of PW1 by alleging that the plaintiff and the second defendant are

colluding together to defeat the right of the first defendant. It was further

stated that plaintiff and the second defendant are having common interest and

sailing together against the first defendant/first respondent. Accepting the

Memo filed by the first defendant, the court below passed the order dated

22.09.2022 directing the second defendant to cross-examine PW1 and

thereaftrer, the first defendant side shall cross-examine PW1. Aggrieved by

the said order dated 22.09.2022, the second defendant in the suit has come up

with this Civil Revision Petition.

6. The learned counsel for the Petitioner submitted that the memo filed

by the first defendant to defer the cross examination of Plaintiff side witness,

is not maintainable in law. It is further submitted that the provision to defer the

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CRP. No. 4045 of 2022

cross examination is only available in Section 231 of Criminal Procedure Code

and the order passed by the trial court is without jurisdiction. Section 231 of

the Criminal Procedure Code reads as follows:

“231: Evidence for Prosecution:(1) on the date so fixed,

the judge shall proceed to take all such evidence as may be

produced in support of the prosecution.

(2) The Judge may, in his discretion, permit the cross

examination of any witness to be deferred until any oth