BHANUMATHY Vs. M VENKATESAN

JUDGEMENT

(1.) Plaintiff in O.S.No. 23 of 1984, Sub Court, Salem is the petitioner herein. She filed the suit for partition and separate possession of A and B schedule properties, and for a direction to take accounting of the profits of the firm of Narayana Udayar and Brothers, which was dissolved in 1980 and pay the amounts which had become due to her.

(2.) Pending disposal of the suit, she filed I. A. 933 of 1988 to reopen the case, so that she may be examined for adducing further oral and documentary evidence. The suit was posted on 13-6-1988 for further arguments. It was on that day, she filed an affidavit in the above-said I.A. claiming that she could not go from Madras to Salem every time for the hearing of the suit, and therefore, she had deputed her husband, who used to contact her previous advocate and intimate her about the stage of the suit. Her husband was extracting money and jewels from her and leading wayward life, and enmity developed when she refused to oblige him with money; and without her consent and knowledge, he had given evidence as her witness and made some endorsement on the plaint. She wanted to examine herself as a witness and mark some important documents, but without getting instructions from her husband and her previous advocate had made endorsements on the bundle against her interests. Hence she filed an application under S.151, C.P.C. for reopening the case.

(3.) The 12th respondent had filed counter claiming that plaintiff's counsel reported to court that he was not examining the plaintiff, and he was satisfied with the evidence of her husband, who was examined as P.W. 1 and closed the plaintiff's evidence. Defendants felt that there was no necessity to lead any oral evidence on their side. Therefore, they stated that they are not adducing oral evidence and therefore, the case was posted for arguments of plaintiff's counsel on 8-3-1988 and it was adjourned to 10-3-1988 for further arguments. On that day, the plaintiff's counsel made an endorsement that he is not claiming any right or share against 12th respondent and his properties mentioned in A schedule to the plaint. Her husband was in charge of the case right from the beginning and gave evidence on her behalf and consented for making an endorsement on the plaint, which resulted in her counsel endorsing the plaint to that effect on 10-3-1988 and 11-3-1988. The claim that the endorsements were made without her knowledge is not true. Even now she had not disclosed as to what are the important documents she wants to mark as exhibits. As she had not reserved her right to examine herself later on, but examined her husband as P.W. 1 in the beginning, she cannot now ask for herself to be examined in view of O.18, R.3-A, C.P.C. In fact, after arguments were heard, and matter was posted for judgment several times and as Presiding Officer could not make ready the judgment before vacation, he reopened it and posted it to 13-6-1988 for further argument. In the interval perhaps, they have decided to change their counsel and it had resulted in filing the present application.