KALIAPERUMAL NAIDU Vs. KUPPUSWAMI NAIDU

JUDGEMENT

(1.) THE revision petitioner herein is the first defendant in O.S.No.717 of 1986 in the Court of District Munsif at Thirukoilur. Present respondents 1 to 3 filed the suit for declaration and injunction in respect of suit lands on the allegation that the properties originally belonged to their father Pakkirisamy Naidu. Pakkirisamy Naidu died on 17.7.1984. His wife had pre-deceased him. First plaintiff and first defendant who are his sons and plaintiffs 2 and 3 who are the daughters are his only heirs. Even during the life time of their father they have divided their properties under two deeds dated 4.4.1959 and 1.12.1982. THE suit lands and some other items were admitted to be mentioned in these two partition deeds. Plaintiffs and the first defendent alone are in enjoyment of these properties after the death of their other. At the instance of the first defendant, defendants 2 to 6 are trying to disturb the possession of the plaintiffs. THE first defendant resisited the suit pleading that he was not aware of the partition deed dated 1.12.1982, and it would not bind him. THE suit items belonged to the joint family of Pakkirisamy Naidu and his sons. This defendant has been impleaded in order to harass him. We find from the disposition of first plaintiff as P.W.I, that when he was in the witness box on 10.3.1993, the first defendant did not choose to cross-examine him. THE cross-examination of the second defendant alone finds a place therein. However, on 18.3.1993 the first defendant has come forward with I.A.No.853 of 1993. Under Sec.151, C.P.C. seeking permission to recall P.W.I and cross-examine him. In the affidavit in support of the application he states that P.W.I has given false evidence against the first defendant when he was cross-examined by defendants 2 to 6. So, he has to recall P.W.I and cross-examine him on that aspect. This was resisted by the fourth respondent claiming that it is only an attempt to fill up the lacuna in evidence. THE first defendant who is the brother of the plaintiffs has submitted to decree. Only in order to help his brother he has come forward with this application. And in any event the application to recall should have been filed under O.18, Rule 17, C.P.C. and not under Sec.151, C.P.C. THE court below holding that the application should have been filed under O.18, Rule 17, C.P.C. and not under Sec.151, C.P.C. and that the first defendant had not chosen to cross-examine P.W.I, in any manner and so he has no right to recall him for cross-examination, rejected the application. And this civil revision petition by the first defendant is directed against the said order.

(2.) IT is a well-settled legal proposition that quoting wrong provision of law in the application cannot be a bar by itself in granting the remedy. In Alamelu v. Rama Iyer, A.I.R. 1922 Mad. 446, a Division Bench of this Court has held that the fact that the petition in a case is headed as under Sec.151 does not debar the Court from proceeduing with it under any other provision, which it may find actually applicable. In Ankayya v. Subhadrayya, A.I.R. 1932 Mad. 223, this Court has pointed out that courts should not consider an application only with reference to the section under which it is purported to be filed. If courts have got inherent power to entertain an application and grant the relief prayed for therein, the circumstance that a wrong section is quoted should not be taken as such into account when the high court is asked to exercise its power of revision in such matters. Evidently the view of the court below is erroneous and the failure to file the application under O.18, Rule 17, C.P.C. cannot stand in the way of recalling P.W.I for cross-examination, if it is in the interest of justice.

(3.) IN the result, the civil revision petition is allowed and the order of the court below in I.A.No.853 of 1993 is set aside and the petition to recall P.W.I is permitted. Parties to bear their respective costs throughout.