B. Rajendran, J.@mdashO.S.A. Nos. 182 and 183 of 2009 have been filed by the Plaintiff as against the order of dismissal dated 10.12.2010 made in Application No. 5471 of 2010 and 5472 of 2010 in C.S. No. 632 of 1997 dismissing the applications filed for re-opening of evidence and to re-call PW1 for the purpose of marking certain documents.
2. O.S.A. No. 221 of 2011 was filed by the Defendants 7 and 8 against the order dated 10.12.2010 made in Application No. 5550 of 2010 in C.S. No. 632 of 1997 praying to suspend the interim order already granted on the ground that there is a delay in disposal of the suit.
3. For the sake of convenience, the parties shall be referred to as per their litigative status in the suit as ''Plaintiff'' and ''Defendants''.
4. The facts which are necessary for disposal of the appeals in O.S.A. Nos. 182 and 183 of 2011 are as follows:
(i) The Plaintiff has filed two applications namely Application No. 5471 of 2010 and 5472 of 2010 in C.S. No. 632 of 1997 before the learned single Judge invoking the proviso to Order IV Rule 8 and Order 17 Rule 7 of Original Side Rules read with Order 18 Rule 17 of CPC with a prayer to re-open the evidence and to recall PW1 to mark various sale deeds, as specifically set out in pagraphs 27 and 29 of the proof affidavit of PW1. The sale deeds sought to be marked pertains to plot No. 7; the Board resolution of the Plaintiff company; Form
32; letter dated 28.07.2008 written by the sixth Defendant to the commissioner of police with a copy marked to PW1/Plaintiff and e-mail dated 24.07.2008 sent by the fifth Defendant to the Plaintiff.
(ii) According to the Plaintiff, the suit in C.S. No. 632 of 1997 was filed for specific performance of the agreement of sale dated 03.08.1994. The suit was filed, signed and verified by Subbiah, father of the Plaintiff, who died on 29.12.2005. After the death of his father, the Plaintiff is prosecuting the suit after getting necessary order dated 09.03.2010 from this Court. It is also stated that he is also one of the Directors of the Plaintiff company.
(iii) Earlier, when the trial in the suit commenced, a proof affidavit was filed on behalf of PW1. In paragraph 27 of the proof affidavit, details as regards ownership of the entire property located at No. 1, Lattice Bridge Road, the details regarding the various sale deeds in favour of various companies, which are sister companies of the Plaintiff, were given. Further, in para No. 28 to 30, the details regarding certain small portion owned by third parties, as per the sale deed executed by the Defendants 1 to 9, were also mentioned. Even though the details of the above aspects were mentioned in the proof affidavit, the documents in support thereof were not marked under the bonafide impression that there is No. dispute in so far as to the Plaintiff owning the other properties also, that too as per the sale deeds executed by the Defendants 1 to 9 themselves, in favour of various sister concerns and other parties of the Plaintiff. According to the Plaintiff, for the first time, written submissions were made and that too after the third time when the matter was argued before the learned single Judge, in which a specific statement was made that the Defendants 1 to 9 deny the ownership of the Plaintiff to the properties. Therefore, it has become necessary for the Plaintiff to file the application to recall PW1 to mark those documents, which are mentioned in para-27 of the proof affidavit in so far as it relates to the title of the property under 29 sale deeds.
(iv) The Plaintiff would further contend that there is No. need or necessity earlier to file the applications as there was No. dispute at all that the Plaintiff is the owner of the other properties baring a small portion. The Plaintiff further contend that he has marked the topo sketch, Ex.P5 which clearly indicate that plot No. 1 owned by the Plaintiff, plot Nos. 3, 4, 5 owned by the Plaintiff and his sister concerns, plot Nos. 6 and 7 owned by third parties and plot No. 2 is the subject matter of the suit. Even in Plot No. 2, 17/18 share was already given to the Plaintiff and there is only a balance of 1/18 share. Therefore, he was under the impression that these are admitted facts and therefore, to substantiate the same, the documents were not marked earlier.
5. The learned Counsel appearing for the Plaintiff would contend that the documents sought to be marked are not new documents. The parties to the documents are intra-parties, it is within their knowledge the documents have come into existence and therefore, the learned single Judge ought not to have dismissed the application. One of the documents sought to be marked is the resolution passed by the Plaintiff company authorising the Plaintiff to file the suit after the death of his father and it also recognises him as one of the Directors of the Plaintiff company and also to continue the suit. Even though at the time of filing of the suit the document was not filed, it can be ratified at any point of time. Therefore, the ratification was also sought to be produced inasmuch as the Defendants 1 to 9 have taken a stand that the suit is not properly filed. The learned Counsel for the Plaintiff would further contend that the list of Directors, as per Form No. 32 is also sought to be produced to show that the proper and correct persons are representing the Plaintiff company. According to the learned Counsel for the Plaintiff, the documents namely Board resolution, resolution with regard to ratification and form No. 32 given by the Company Law Board are all public documents, No. prejudice will be caused to any one if these documents are permitted to be marked. Further, a letter was written by the sixth Defendant in the suit complaining that plot Nos. 1, 3, 4 and 5 have already been sold to various companies and he is in occupation of the palace in Plot No. 2, even though he has sold his share to the Plaintiff. This document is vital to prove the case of the Plaintiff. Above all, these documents are sought to be produced only to seek the equitable relief.
6. The learned Counsel for the Defendants 1 to 9 resisted the applications by contending that the applications are bereft of any material particulars. In the plaint, the Plaintiff has not pleaded anything about the alleged sale deed in favour of the sister concerns, especially, what is stated in paragraph 27 of the proof affidavit is different and there is No. reference to the 29 sale deeds. Therefore, what was not pleaded cannot be argued by the Plaintiff or the Plaintiff can be permitted to adduce evidence in respect of the same. Therefore, the learned Counsel for the Defendants 1 to 9, at the outset, made a strong objection that without a plea, No. evidence can be let in by the Plaintiff. Secondly, even at the time of cross-examination of PW1, a specific question was put to him stating that the Defendants deny that he is the owner of all other property baring the sale deed which is subsequent to the filing of the suit. When there is specific denial even at the time of cross-examination, the Plaintiff, having failed to produce the documents is estopped from filing the present applications especially after the matter is posted for argument. In fact, arguments have been advanced twice before two Honourable Judges of this Court and when the suit was taken up for hearing for the third time, after completing the arguments, the present applications have been filed and therefore, the applications are highly belated and filed only to drag on the proceedings. The Defendants 1 to 9 would contend that this application is filed only to fill up the lacuna, which cannot be permitted.
7. In so far as the reception of documents pertaining to Board resolution as well as form 32 is concerned, the learned Counsel for the Defendants 1 to 9 would specifically raised a plea that the suit has been filed without any due authorisation and there was No. resolution to the effect authorising the Plaintiff to file the suit. The plaint does not disclose about any resolution or the authority to sign the plaint. Further, written statements were filed way back in the year 1998 itself contending that the Plaintiff has No. authority to sign or verify the plaint, the present applications to reopen the evidence and to recall PW1 is highly belated especially the applications were filed after the suit was argued twice before two Honourable Judges of this Court. By filing these applications, the Plaintiff is attempting to drag on the proceedings, which is a practice deprecated by this Court as well as the Apex Court. Only on the ground of equity, the present applications has been filed, whereas, even in the written statement, it was specifically pleaded that the plea of equity will arise only in respect of the documents executed by the fifth and sixth Defendants. Lastly, the learned Counsel for the Defendants 1 to 9 would contend that there is No. specific pleading in the plaint and in the absence of any plea, the Plaintiff should not be permitted to mark the documents.
8. In so far as O.S.A. No. 221 of 2011 is concerned, the Defendants 7 and 8 would contend that the interim order was granted not to alienate the property as early as on 29.12.2004 in the application taken out by the Plaintiff in O.A. No. 667 of 1997. The suit was of the year 1997 and the Plaintiff is making every effort to drag on the matter inspite of the fact that the suit was argued before two Honourable Judges of this Court on two occasion. Thereafter, when the suit was posted for argument, the Plaintiff has filed two applications to re-open the evidence of PW1 and to receive additional documents, which are the subject matter of O.S.A. No. 182 and 183 of 2011. These two applications were filed by the Plaintiff only to drag on the proceedings. The order of interim injunction is in force for the past eight years and therefore it has become necessary to suspend the order of interim injunction especially in view of the fact that the Plaintiff is trying to drag on the proceedings. The learned Judge, without appreciating the delaying tactics of the Plaintiff has erroneously dismissed the application to suspend the order on the ground that in a suit for specific performance, if the interim injunction is vacated, rights of the parties to the litigation will be affected.
9. The learned Counsel for the Plaintiff would contend that as far as O.S.A. No. 221 of 2011 is concerned, the learned single Judge rightly considered that in a suit for specific performance, if interim order is vacated it will affect the right of the parties besides that such order was passed only to safeguard the rights and interest of the parties pending suit, otherwise, the relief sought for in the suit itself will become infructuous and third party right will intervene resulting in multiplicity of proceedings. Only to avoid the same, the learned single Judge has rightly dismissed the application filed by the Defendants 1 to 9 seeking to suspend the interim order and therefore, he prayed for dismissal of O.S.A. No. 221 of 2011 filed by the Defendants 7 and 8.
10. Based on the averments made in the affidavit, counter affidavit and after hearing the arguments of both sides, the learned single Judge has come to the conclusion that the applications filed by the Plaintiff for re-opening and recalling PW1 cannot be allowed on the ground that there was No. averment in the plaint itself, therefore permitting the Plaintiff to mark the documents is not warranted, besides the documents were not produced at the earliest point of time. Further, the Plaintiff has not shown sufficient cause for re-opening the case especially when the suit was posted after arguments. Therefore, the learned single Judge dismissed the applications filed by the Plaintiff in Application Nos. 5471 and 5472 of 2010. The learned single Judge also dismissed the application filed by the Defendants 7 and 8 to suspend the interim order, by holding that the trial in the suit was over and the suit is posted for arguments and at this stage, if the interim order is vacated and the property is sold to third parties, it would invite third party rights.
11. We have heard the learned Counsel for both sides and perused the materials placed before us, including the affidavit filed in support of Applications filed by the Plaintiff as well as the Defendants 7 and 8 for suspension of order.
12. It is clear from the averments that the documents sought to be marked by the Plaintiff through PW1 were already in the custody of the Plaintiff himself even at the time of institution of the suit. Even according to the Plaintiff, the properties are now owned by the sister concerns of the Plaintiff. The documents were in the custody of the Plaintiff and it is not even pleaded in the application for re-opening the evidence as to why the documents, which are now sought to be produced, were not marked at the earliest point of time. The fact that the Plaintiff was under the bonafide impression that there is No. dispute as to the ownership of the property cannot be accepted when there are specific instances wherein the Defendants 1 to 9 have categorically denied the claim of the Plaintiff.
13. When we take into consideration the cross-examination of DW1, it was categorically deposed that "I deny the suggestion that barring 77.5% undivided share of plot No. 2, the Defendants do not retain any other portion in plot No. 5." Though in the earlier paragraphs sets out the sale deed listed in paragraph 27 of proof affidavit of PW1 relating to plot No. 3, 4 and 5 and the plot Nos. 1 and 3 executed by his father as power agent (father of DW1), he would contend that "my father represented the Defendants 1 to 7 and 9 also in the execution of sale deed.." He would categorically depose that "I deny the suggestion except what is shown as part of plot No. 2, all other portions shown in the sketch filed as Ex.P5 has been disposed of by us." This cross-examination was done on 09.04.2010 and 19.04.2010 respectively. Therefore, there was a categorical denial even at that point of time. If we read the plaint, No. where in the plaint the Plaintiff has pleaded in respect of the availability of documents, as regards ownership of the entire property. Only now, argument is advanced to claim equity and for claiming equity the Plaintiff requires these documents to be marked through PW1. As pointed out by the Defendants, the Plaintiff, to claim equity, has pleaded only in respect of sale deed executed by the fifth and sixth Defendants, which are after the suit. As far as equity is concerned, definitely, even if one portion of the property is shown to be owned by the Plaintiff, it could always be argued at the time of trial. But, merely on the basis of claiming equity, it is not open or necessary for the Plaintiff to seek for re-opening the evidence and to recall PW1.
14. The main contention of the Plaintiff is that in the proof affidavit, in para 27, he had referred to the various documents under which sale was made in favour of various sister concerns of the Plaintiff company. These documents, though was referred to in the proof affidavit, were not marked due to his bonafide impression that his ownership over the property was not disputed by the Defendants 1 and 9. Unfortunately, as stated earlier, the Defendants have specifically denied the claim of the Plaintiff during the course of evidence. Therefore, the contention of the Plaintiff that he was under the bonafide impression that his ownership is not disputed, cannot be accepted. It is not as though the documents were not available with the Plaintiff at the time of institution of suit. The documents sought to be marked were available with him and inspite of the same, the documents were not produced nor any pleadings made. Though an argument was made that these documents were produced in the other two suits namely C.S. No. 158 and 160 of 2006, which are not the subject matter of the present suit, even that was not pleaded in the plaint. Further, in the applications for re-open and recalling PW1, barring one sentence stating that only at the time of argument and filing of written submission a stand was taken by the Defendants disputing his ownership which necessiated him to file the present applications, is factually incorrect and it cannot be accepted. In fact, we find that what was pleaded in the present applications was not pleaded in the plaint, which was filed earlier. Therefore, in the absence of any pleadings, the Plaintiff cannot be permitted tomark the documents that too after 13 years from the date of filing the suit.
17. On perusal of the impugned order, we find that the learned single Judge discussed the implication of Order 17 Rule 6 and 7 of the Original Side Rules of this Court and proviso to Rule 14 to Order VI of CPC to hold that the Court may, for sufficient reason direct any party to examine any witness in any stage of the suit, but the word ''any stage'' does not mean to include the period after the completion of the trial. Similarly, by relying on proviso to Order VII Rule 14, the learned single Judge held that if a document, which ought to have been produced in the Court at the time of filing of the suit, is not produced, it shall not be produced without the leave of the Court. We are also of the considered view that the words ''any stage'' indicated in Order 17 Rule 6 and 7 of the Original Side Rules of this Court would only mean the period prior to the trial and once trial is over, the Plaintiff or the Defendant are estopped from marking any document to substantiate their claim. In this case, trial was completed and the matter was posted for argument and at this stage, the Plaintiff sought to mark the documents. Therefore, the learned single Judge is justified in dismissing the applications filed by the Plaintiff.
16. The learned Counsel for the Petitioner relied on the decision reported in
25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said Rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.
29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.
30. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial court to permit recall of such a witness for re-examination in chief with permission to the Defendants to cross-examine the witness thereafter. There is nothing toindicate that such is the situation in the present case.
17. It is evident from the above decision of the Honourable Supreme Court that No. person can be allowed to fill up lacuna in the evidence of the witness which has already been recorded. Further, it was held that a discretion is vested in the Court to permit recall of a witness for re-examination in chief with permission to the Defendants to cross-examine. In this case, there is No. material to indicate that such a situation exist warranting allowing of the applications filed by the Plaintiff to re-open the evidence and to recall PW1 for the purpose of marking the documents.
18. Admittedly, the Plaintiff has filed the applications at the fag end of argument. We also find from the records that originally, a representation was made on behalf of the Plaintiff that they want to send for the documents, which are marked in C.S. No. 158 to 160 of 2006 and therefore, the suit was adjourned to 27.09.2010 and only on that day, the present applications namely Application Nos. 5471 and 5472 of 2010 were filed for re-opening of the evidence. It is also admitted that there is No. pleading at all in the plaint in so far as to the allegations and details given in para-27 of the proof affidavit of PW1. While so, the learned single Judge is justified in dismissing the applications filed by the Plaintiff.
19. When we carefully read the affidavit filed in support of the petition, we could see a clear admission that the documents, which are sought to be marked, were in the custody of the Plaintiff, however, the Plaintiff has not chosen to make any pleading regarding the availability of those documents, in the plaint. The reason assigned by the Plaintiff was he was under the bonafide impression that there was No. dispute with regard to the ownership of the property and it was also not denied by the Defendants. At the same time, the Plaintiff has also not exercised due diligence to produce the documents even after the cross-examination was over, where, the Defendants have made a specific denial of the title of the Plaintiff to the property. Taking into consideration the gap between the period of cross-examination and the arguments advanced before two learned single Judges of this Court and the time taken for advancing arguments before the third judge, we hold that the applications filed by the Plaintiff are frivolous and cannot be entertained. As rightly pointed out by the learned single Judge, the suit was pending for the past 13 years and the present application was filed after the arguments are closed for the third time. It is evident that the applications were filed only to drag on the proceedings.
20. In the written statement of the 9th Defendant, it has been categorically stated in para No. 3 that "The plaint does not disclose as to how and in what manner K. Subbiah, shown as Director of Plaintiff company, is competent and duly authorised to sign and verify the plaint. The Plaint does not disclose any resolution in this regard; nor does the plaint refer to or disclose the date on which the Plaintiff had resolved tofile the suit and authorised Mr. K. Subbiah to sign and verify the plaint..." Therefore it is clear that the ninth Defendant had categorically stated regarding the competency and authority of Subbiah to file the suit and prayed for rejecting the suit on that ground. The written statement was filed even as early as March 1998 itself, but the present application has been filed to produce the alleged resolution in the year 2001 and therefore it cannot be accepted. Further, even in the resolution which is sought to be marked now, there is No. mention as to when the resolution was passed. Even in the application filed during March 2010 seeking to implead himself in the place of his father, the Plaintiff has not chosen to produce the ratification or resolution and in the order dated 09.10.2010 also, the question of maintainability of the suit was left open to be decided. Therefore, the Plaintiff, having failed to produce the documents at the earliest point of time especially after the trial in the suit was over and when the suit was posted for arguments, has filed the instant applications to fill up the lacuna. Therefore, it is not open to the Plaintiff to file the present applications. The learned Counsel for the Defendants further contended that all these efforts were made by the Plaintiff to fill the lacuna especially when there has been denial and objection made by the Defendants 1 to 9. As regards equity is concerned, it was only pleaded with reference to documents executed by the Defendants 5 and 6. The Plaintiff wants to put up a new case which is outside the scope of his pleadings and that is why he is seeking to produce the documents. In any event, it is not open to the Plaintiff, at this stage to file the applications to recall and mark documents and this was rightly considered and rejected by the learned single Judge and he prayed for dismissal of the Original Side Appeals filed by the Plaintiff.
21. The learned Counsel for the Defendants 1 to 9 vehemently contended that the plaint itself was not filed by a proper person or there was any resolution produced to show that the person who signed the plaint is competent to file the suit. In this connection, we have gone through the written statement of the 9th Defendant, wherein it was categorically stated as follows:
3. The suit as framed is not maintainable in law for the following reasons:
(a) The plaint does not disclose as to how and in what manner Mr. K. Subbiah, shown as a Director of the Plaintiff company, is competent and duly authorised to sign and verify the plaint. The plaint does not disclose any resolution in this regard; nor does the plaint refer to or disclose the date on which the Plaintiff had resolved to file the suit and authorised Mr. K. Subbiah to sign and verify the plaint; the lack of details in this regard in the plaint cannot now be filled up by the Plaintiff for the matter goes to the root regarding the competence and authority of Mr. K. Subbiah to represent the Plaintiff and sign and verify the plaint. Hence, the plaint is liable to be rejected at the threshold stage.
(b) Assuming without admitting that Mr. K. Subbiah has legal competence and authority to sign and verify the plaint, the verification of the plaint has not been done in a manner known to law. Hence, the plaint is liable to be rejected."
22. From the averments in the written statement of the 9th Defendant, it is clear that the 9th Defendant had specifically pointed out that the plaint filed without a resolution authorising the Plaintiff to file the suit is not maintainable and that the plaint has been signed by the Director, who is not competent or duly authorised to sign the plaint. It was also contended that this issue goes to the root of the matter and therefore the plaint has to be rejected on this ground by framing a preliminary issue. The written statement was filed by the 9th Defendant as early as March 1998. When such a defence was taken by the 9th Defendant, it is not known as to why the Plaintiff has not chosen to produce the document at the earliest point of time to show that the plaint was filed by a proper and correct person and he is authorised and competent to file the suit. After the evidence was over, the Plaintiff has filed Application No. 1371 and 1372 of 2010 to condone the delay in filing the application and to substitute his name in the place of the director of the Plaintiff company deceased Mr. K. Subbiah. Even when this application was filed in the year 2010, it was resisted by the Defendants on the ground it was belatedly filed. This Court, by an order dated 09.10.2010 held that the issue about the competence of the Plaintiff to represent the Plaintiff company can be left open to be agitated by the Defendants in the suit. When such an objection was raised, at least for the second time, the Plaintiff ought to have produced the documents, which are sought to be produced now. The Plaintiff ought to have been cautious enough to produce the resolution ratifying him to prosecute the suit at the earliest point of time, but that was not done. Even in the cross-examination, this point was raised, but the Plaintiff remained silent. Finally, when the suit was posted for argument for the third time, the present applications were filed, therefore, we hold that the applications are highly belated and the learned single Judge is justified in dismissing the same.
23. The learned Counsel for the Plaintiff relied on the decision reported in
24. Reliance was also placed by the learned Counsel for the Plaintiff on the decision reported in (Union Bank of India v. Naresh Kumar and others) 1996 6 SCC 669 to say that even at the appellate stage, a competent person can be examined as a witness to prove that ratification was already made authorising the person to prosecute the case and such substantial right cannot be curtailed on mere technicalities or procedural irregularities. In that case, the question arose for consideration was whether the plaint filed on behalf of the Corporation was duly signed and verified by a competent person. It was held by the Honourable Supreme Court that a person may be expressly authorised to sign the pleadings on behalf of the company. In absence thereof and in cases where pleadings have been signed by one of its officers, a corporation can ratify the said action of its officer in signing the pleadijngs. In fact, in that case, the Supreme Court found that the Corporation had ratified the act of signing of pleading by its officer. Therefore, this decision will not be of any help to the Plaintiff. In this case, the suit was argued before two Honourable Judges of this Court and till such time, the Plaintiff has not filed any document to show that the company has authorised him or passed a resolution ratifying the signing of the plaint by the erstwhile Director of the company. As rightly pointed out by the learned single Judge, immediately after filing the suit, the Defendants have filed the written statement specifically raising the plea that the suit filed is not proper and the person who signed and verified the plaint is not competent to do the same. Inspite of such a defence raised, the Plaintiff remained silent all along and the Plaintiff has not chosen to produce any document to substantiate that the suit was filed by a proper and correct person. Therefore, at this stage, if the applications filed by the Plaintiff is allowed, it will only enable the Plaintiff to fill up the lacuna and it is legally impermissible. Therefore, we do not find any reason to interfere with the reasoned order of the learned single Judge.
25. As far as O.S.A. No. 221 of 2011 filed by the Defendants 7 and 8, which arose out of the application filed for suspension of the interim order, we find that the interim order was in force atleast from the year 2004 and the suit is also now posted for argument. At this stage, we are not inclined to vacate the interim order. As rightly pointed out by the learned single Judge, in a suit for specific performance, if the subject matter of the property is alienated, it will invite creation of third party rights resulting in multiplicity of proceedings. Even though if the property is alienated during the pendency of the suit, it will attract the principles of lis pendence, at this length of time, we are not inclined to vacate the interim order which was in force for a long time. We only direct both the parties to cooperate for expeditious disposal of the suit.
26. Accordingly, all the appeals are dismissed. No. costs. Consequently, connected miscellaneous petitions are closed.
