@JUDGMENTTAG-ORDER
R. Banumathi, J.@mdashThese Revisions are directed against the Order in LA. Nos. 308 of 2007 and 309 of 2007 allowing the Petitions filed Under Or.18, Rule 17 CPC to re-open the case and to re-call P.W.1 for the purpose of marking additional documents. The Respondent-Plaintiff has filed O.S. No. 197 of 2000 for Permanent Injunction restraining the Defendant from interfering with the Plaintiff''s peaceful possession and enjoyment of the suit property. The Revision petitioner-Defendant has been resisting the suit contending that he is a cultivating tenant of all the suit properties excepting item No. 7 -S. No. 293/4.
2. Trial commenced, parties adduced oral and documentary evidence. The case was posted for arguments on various dates. On 05.09.2007 the Respondent-Plaintiff has filed Petitions LA. Nos. 308 and 309 of 2007 to re-open the case and to re-call P.W.1. These Petitions were strongly opposed by the Revision petitioner-Defendant.
3. Observing that recalling of P.W4 is essential for complete adjudication and to avoid multiplicity of proceedings, the learned District Munsif has allowed both the Petitions on payment of cost of Rs. 200/- to the Defendant.
4. Challenging the impugned order, the learned counsel for the Revision petitioner-Defendant has submitted that when the Petitions did not disclose the purpose for which P.W.1 was recalled and when the description of the documents sought to be marked were not furnished in the Petition, the impugned order allowing the Petitions to re-open and re-call P.W.1 is unsustainable. The learned counsel for the Revision petitioner would further submit that the very purpose of filing the Petition is only to exhibit the document which was not described in the affidavit nor produced before the court below and while so, the lower court erred in allowing the Petitions.
5. Taking me through the pleadings, the learned counsel for the Respondent-Plaintiff has submitted that the Respondent-Plaintiff sought to file the order passed by the Tahsildar in the record of tenancy proceedings and the omission to give particulars of document cannot be the reason for disallowing the Petitions to re-open the case and to re-call P.W.1. The learned counsel for the Respondent-Plaintiff would further submit that no weight could be attached to the technical objection raised by the Revision petitioner-Defendant.
6. The Respondent-Plaintiff has filed the suit for Permanent Injunction in respect of nine items of property. In the Written statement, the Defendant claims to be a cultivating tenant in the suit property excepting item No. 7 - S. No. 293/4. The learned counsel for the Respondent-Plaintiff has stated that the Revision petitioner-Defendant has filed Petition before the Tahsildar to register him as cultivating tenant in respect of all the nine items including item No. 7 and the Petition was said to be dismissed by the Tahsildar. The order of Tahsildar is said to have been marked as Ex.A10. Subsequently, the Revision petitioner-Defendant appears to have filed another Petition before the Tahsildar for deleting item No. 7 -S. No. 293/4. It was stated that the subsequent Petition was also dismissed by the Tahsildar and the Respondent-Plaintiff seeks to mark the same as additional document for which purpose P.W.1 was sought to be recalled.
7. Though, in these Revision it was stated that P.W.1 was sought to be recalled to mark the order of the Tahsildar, the same was not mentioned in the Petition. Petition to re-call and re-open does not indicate as to in what respect further examination of P.W.1 was essential and what were the documents sought to be marked.
8. Under Or.18, Rule 17 CPC the Trial court has got powers to re-call the witness for further examination. Power under Or.18, Rule 17 CPC is discretionary and it is to be exercised with great care and in the exceptional circumstances to prevent failure of justice. Additional evidence can be permitted only if the parties satisfies the court that the evidence sought to be produced was not within his knowledge or that it could be produced despite due diligence.
9. Of course, it would have been desirable if the Respondent-Plaintiff had mentioned as to in what aspect recalling of P.W.1 is essential and furnishing the description of document sought to be produced as additional evidence. When request for further examination of P.W.1 was made on the ground of marking certain document and when the Petition did not mentioning the description of the document, the Trial court could have enquired about the document sought to be produced as additional evidence. Having regard to the facts and circumstances of the case, in my considered view the objection raised by the Revision petitioner-Defendant is more technical and cannot be sustained.
10. The learned counsel for the Respondent-Plaintiff has filed a Memo furnishing description of documents sought to be marked as additional evidence. The following documents are sought to be filed as additional evidence:-
1. Notice issued by the Tahsildar, Illupur Taluk vide R.T.R. No. 3/2003 dated 06.08.2007.
2. The subsequent Order passed if any, by the Tahsildar, Illupur against the Petitioner''s claim - RTR. No. 3/2003.
Since the Revision petitioner-Defendant claims tenancy right, for effective and complete adjudication, the Respondent-Plaintiff has to be permitted to mark the above documents as additional evidence. The Trial court has ordered payment of cost of Rs. 200/-. Having regard to the facts and circumstances of the case, the cost is enhanced to Rs. 600/-.
11. In the result,
The order of the District Munsif-cum-Judicial Magistrate, Keeranur passed in LA. Nos. 308 and 309 of 2007 in '' O.S. No. 197 of 2000 is confirmed. However, the cost of Rs. 200/- payable to the Revision petitioner-defendant is enhanced to Rs. 600/-.(Rs.300/- to each of the Petitions)
The cost of Rs. 300/- plus Rs. 300/-shall be payable to the Revision petitioner-Defendant within a period of two weeks from the date of receipt of copy of this order.
The learned District Munsif-cum-Judicial Magistrate, Keeranur shall re-call and further examine P.W.1-Plaintiff for receiving additional evidence by marking the documents indicated in paragraph (11).
On filing necessary Petition, the learned District Munsif-cum-Judicial Magistrate shall afford sufficient opportunity to the Revision petitioner to further cross examine the Respondent-Plaintiff in respect of the additional evidence adduced.
It is made clear that re-opening and recalling of P.W.1 shall be confined only in respect of the additional evidence sought to be filed as indicated in paragraph (11).
Both parties are directed to co-operate with the Lower court for early disposal of the suit. Consequently, connected M.P. No. 1 of 2007 is closed.
