S MAHIMAIDOSS Vs. VANATHAYYA

JUDGEMENT

(1.) Second defendant in O. S. 10219 of 96 on the file of II Additional Judge, City Civil Court, Madras, aggrieved by the Order dated 23-2-1999 made in I.A. No. 6989 of 98, dismissing his petition filed under Section 151, C.P.C., to receive the list of documents filed by him, has filed the above revision before this Court.

(2.) The first respondent herein-plaintiff filed O.S. 10219 of 96 prayed for declaration of title to the suit property and for a decree of possession directing the defendants to quit and deliver vacant possession of the suit property to plaintiff. The case of the petitioner before the trial Court was that he has acquired title to the suit property by adverse possession. He has also pleaded in his written statement that the plaintiff had issued a legal notice dated 29-4-1977, directing him to quit and deliver vacant possession of the suit property. The plaintiff also claimed damages from him. The trial Court framed issues on 12-11-1997 and directed the parties to the suit to file list of documents in two weeks. It is stated that the reason for not filing the document dated 29-4-1977 at the earliest stage is that the first respondent/plaintiff has not filed any reply statement controverting the defence pleas raised by him in the written statement and as such he thought that the plaintiff would admit in his evidence that he has sent the legal notice dated 29-4-1977 to him viz., the 2nd defendant in the suit. Since the plaintiff in his cross-examination denied having sent any legal notice dated 29-4-1977 to him, it became imperative for him to mark this document on his side. There is a delay of 148 days in filing the application to receive the document. He filed I.A. 6985/98 to condone the delay in filing the application to receive the document and I.A. 6986/98 to receive the document dated 29-4-1977. Both the I.As., were filed before the trial Court on 23-4-1998. Since the trial Court closed his evidence on 23-4-1998, he filed I.A. No. 6987/98 to reopen his evidence in the suit. The said applications were resisted by the plaintiff by filing a common counter statement. The petitioner herein was not at all examined in the suit at any point of time, hence it is stated that the trial Court grossly erred in coming to the conclusion that the document dated 29-4-1977 cannot be received at this last stage when the plaintiff and the 2nd defendant had already been examined. But the real fact is that the 2nd defendant was not a all examined in this case so far. The trial Court dismissed all the applications, accordingly he preferred C.R.P. Nos. 2247, 2248 and 2249 of 98 against the orders passed by the trial Court dated 29-7-1998. This Court dismissed all the Civil Revision Petitions on 18-8-1998. The Review Application Nos. 96, 95 and 94/98 in C.R.Ps. 2247, 2248 and 2249/98 preferred against the order made in I.A. 6985/98 praying for condonation of 148 days delay in filing the application to receive the document dated 29-4-1997 was dismissed by this Court on 2-11-1998. The other two Review Applications Nos. 95 and 94/98 in C.R.Ps. 2248 and 2249/98 have been allowed by this Court in 19-11-1998 with direction to the lower Court to pass orders on merit with regard to reception of documents after giving opportunity to all the parties. Pursuant to the direction. the trial Court took up the application for re-hearing. The plaintiff made an endorsement in I.A. 6987/98 saying no objection to allow the application. As regards I.A. 6986/98, the plaintiff objected to receive the document dated 29-4- 1977. The trial Court dismissed I.A. 6986/98 on 23-2-1999 against which the petitioner has filed the present revision.

(3.) First respondent filed a counter affidavit disputing various averments made by the petitioner. It is stated that in view of the dismissal of the condonation petition and the same having been confirmed by this Court, the matter reached finality, hence the question to receive documents will not arise. It is further stated that as per the direction of this Court, the tiral Court assigned reasons and rejected the application to receive the list of documents in the suit on behalf of the petitioner/2nd defendant. The present revision petition has been filed only to protract the proceedings which is already in the part-heard stage.