CARMEL SHANTHA Vs. A PUSHPARAJ

JUDGEMENT

(1.) M.CHOCKALILNGAM, J. These two intracourt appeals have arisen from the common order of the learned Single Judge of this Court made in Application Nos.722 and 723 of 2009 in TOS No.12 of 1999 whereby both the applications, the former for reopening the evidence and the latter for adducing additional evidence on the side of the plaintiff, were allowed. Aggrieved contesting defendant namely the appellant herein, has brought forth these appeals.

(2.) The gist of the case of the first respondent/ plaintiff as could be seen from the available materials, is that one A.Dharmaraj had executed a Will on 5.4.1994; that there were two attesting witnesses namely Rathnaswamy Xavier and Dr.M.K.Radhakrishnan; that as far as Rathnaswamy Xavier is concerned, an affidavit was filed on 30.9.1995; that he died on 11.2.2002; that as regards the other attesting witness Radhakrishnan, he could not be examined since he was in foreign parts; that though steps were taken, he could not be examined; that under the circumstances, the evidence was also closed on both sides; that in order to prove the execution and validity of the Will, there arose a necessity for the plaintiff to reopen the case and adduce additional evidence, and under the circumstances, both the applications were filed.

(3.) The contesting defendant namely the appellant herein contested the applications putting forth the reasons that the evidence on both sides was closed; that under the circumstances, it should not be allowed; that apart from that, as far as the affidavit filed by one of the attesting witnesses, is concerned, a specific question has been put to the witness; that he has not answered in favour of the plaintiff; that it is simply an attempt to fill up the lacuna, and under the circumstances, the applications were to be dismissed.