SAROJA AMMAL Vs. KRISHNASWAMI NAICKER

JUDGEMENT

(1.) THIS appeal suit is directed against the Judgment and decree dated 4.12.1984 rendered in O.S.No.32 of 1984 by the Court of Subordinate Judge, Poonamallee thereby dismissing the suit filed by the appellants herein for partition, return of certain movables and for costs.

(2.) TODAY, when the above appeal was taken up for consideration prior to going into the merit of the appeal, the learned counsel appearing on behalf of the appellants would submit that the lower Court passed the judgment on 4.12.1984 without considering an application filed by the plaintiff before the lower Court on 3.12.1984 under Sec.151 of the Code of Civil Procedure praying to reopen the above Code of Civil Procedure praying to reopen the above case for the purpose of marking the documents viz., the mortgage deed of the year 1921 and others, in the interest of justice. The learned counsel for the appellants would fairly submit that the appellants greatly relied on the said document in proof of their claim that some of the suit properties were ancestral in nature and since that document was not able to be procured during trial and in spite of their due diligence and care exercised it was only able to be produced before the Court on 3.12.1984 and therefore the plaintiffs were necessitated to file the application to reopen the suit for further evidence to be let in and for due consideration of the said document filed along with the application.

(3.) MOREOVER, the discretion conferred on the Courts since being the judicial discretion known to law, the lower Court should have exercised its discretion in the manner warranted by law. Instead, the lower Court which had entertained the application on 3.12.1984 itself had kept it idle for the whole day and the next day on 4.12.1984 having chosen to pronounce the judgment had casually taken up the application filed by the appellants the previous day and had simply returned the same on ground that it had already delivered the judgment, as though till such time of delivering the judgment, the Court was not aware of the pending application and the urgency involved in the same so far as it is concerned with the rights of the petitioners therein. It is not fair on the part of the lower Court to have adopted such course for returning the application after delivering the judgment, as a result of which the appellants have reason to get aggrieved with their application filed a day before delivery of the judgment had not at all been considered in the manner required by law and only after disposing the said application on merit with due opportunity for both sides to be heard, the lower Court could have chosen to deliver the judgment. Without adopting such procedures established by law, keeping the said petition idle for the whole day and returning the same after delivery of the judgment is not at all proper on the part of the lower Court nor is it the manner in which it has to be dealt with and therefore it has become necessary on the part of this Court to interfere with the judgment and decree passed by the lower Court without considering the application filed on the part of the appellants herein. The point is answered accordingly.