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1990 DIGILAW 804 (MAD)

M. Munuswamy v. Duraiswamy

1990-09-17

ABDUL HADI

body1990
`ORDER Abdul Hadi, J. 1. This civil revision petition by the 1st defendant mortgagor is against the order dated 6.8.1990 in I.A. No. 369 of 1990 in O.S. No. 97 of 1987 on the file of Sub Court, Krishnagiri. 2. The suit, by the 1st respondent mortgagee, is for recovery of the amount due under the suit mortgage. The plaint states that the original mortgage deed was lost and so, the suit has been filed enclosing a certified copy thereof. The written statement of the petitioner admits execution of the mortgage deed and passing of consideration thereof, but only pleads discharge, it also states that on discharge, the original mortgage deed also has been returned to the defendant. It does not however specifically aver that the plaintiffs plea that the original mortgage deed was lost, is not true. 3. Nearly three years after the institution of the suit it was posted in the list for trial on 2.4.1990. Then the petitioner filed another I.A. for impleading certain persons and got adjournments of the suit many a time. However he subsequently withdrew the said I.A. When the suit was finally posted for trial on 3.7.1990 he filed the present I.A. on the said date when he was rightly asked to let in evidence first on his plea of discharge. The first issue in the suit deals with the discharge. 4. The prayer in the present I.A. is to "amend the issues as detailed hereunder.... Details of Amended Issues.... Delete the 1st issue and amend "whether the plea of the plaintiff that he lost the Original mortgage deed is true"? (Underlining is mine) It is not known why the first issue in the suit has to be deleted, what actually is to be amended, why plural term "issues" is used and what is meant by "amended issues" even before amendment was ordered. It is very much painful to note that the petitioner's counsel in the court below has not bestowed even ordinary care in drafting the petition and that the court below also has numbered the petition and entertained it is such an indifferent attitude, without even taking the elementary care. The affidavit in support of the petition too exhibits want of care, in drafting. 5. The affidavit in support of the petition too exhibits want of care, in drafting. 5. I also find that the first issue, as I find from the certified copy of the impugned order, dealing with the discharge of the suit mortgage, has also not been framed property. It runs as follows: As it stands, the 1st issue looks as though the allegation is that the petitioner says that he will pay off the mortgage amount, it is also painful to note that in framing the issue, such an error giving out an entirely different meaning and that too while employing the mother tongue Tamil itself - has been committed by the Court below. 6. However, the Court below has rightly held that there is no necessity for the said proposed issue "whether the plea of the plaintiff that he lost the original mortgage deed is true? For coming to this conclusion, the Court below has also relied on Bahadur Shah v. Mulk Kaj A.I.R. 1934 Lah. 989 (D.B.). There also the mortgage deed was admitted by the defendants in the written statement and so, the court held that it was not necessary for the plaintiffs to tender formal evidence to prove the loss of the original deed. In fact in the present case, as already indicated the written statement does not specifically say that the original mortgage deed was not lost and it does not even put the plaintiff to strict proof of the plaintiff s allegation that it was lost. 7. The learned Counsel for the petitioner contends that as per Order 7, Rule 14(1), C.P.C., the original mortgage deed on which the suit is laid, must be produced and when it is not produced on the ground that it is lost, the onus is on the plaintiff first of all to prove that it was lost and thereafter only the onus is cast on the defendant prove the above said plea of discharge. Therefore, according to the learned Counsel, there must be necessarily an issue as stated above, and the court below has erred in not including the said issue also as one of the issues in the suit. 8. This argument of the learned Counsel has absolutely no merit. Therefore, according to the learned Counsel, there must be necessarily an issue as stated above, and the court below has erred in not including the said issue also as one of the issues in the suit. 8. This argument of the learned Counsel has absolutely no merit. Order 7, Rule 14(1), C.P.C., runs as follows: Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. (underlining is mine). So, only when the document is in the plaintiffs possession or power, he shall produce it in court when the plaint is presented. Where it is not in his possession or power, then Order 7, Rule 15, C.P.C. says that the plaintiff "Shall, if possible, state in whose possession or power it in." So, Order 7, Rule 14(1), C.P.C., will not at all apply to the present case. The above said Bahadur Shah v. Mulk Kaj A.I.R. 1934 Lah. 898. Squarely applies to the present case. Therefore, there is no error of jurisdiction at all. 9. The learned Counsel for the petitioner no doubt cited before me Brahmanada v. Kanduri Charan Das A.I.R. 1959 Ori. 126 (D.B.) : But, in the said case, there was denial of execution of the mortgage by the minor sons of one of the executants of the mortgage. Only in that context, the court held that the suit for recovery of mortgage money based on a registered copy of the mortgage bond would not be maintainable if the loss of the original mortgage bond was not properly accounted for. But, in the present case, is already mentioned, the execution of the mortgage deed and the passing of consideration have been admitted and the defendant only pleads discharge. He also pleads that he got back the mortgage deed. 10. Section 65 of the Evidence Act to which the learned Counsel for the petitioner drew my attention, has no bearing at all in deciding the present issue in controversy, viz., whether the above said additional issue has to be framed or riot. The stage relating to the admissibility in evidence of the certified copy of the mortgage deed, has not reached at all, so far, in the present case. The stage relating to the admissibility in evidence of the certified copy of the mortgage deed, has not reached at all, so far, in the present case. That will arise only at the time of the trial of the suit while the document in question is sought to be marked in evidence. 11. Further, as per the plea of the defendant, the original mortgage document had been already returned to him (defendant) and so, the plaintiff can very well call upon the defendant to produce the original and if it is not produced, the plaintiff can justifiably mark the certified copy of it, as per Section 65(a) of the Evidence Act. Further, eyen otherwise, he can mark it as per Section 65(e) or (f) of the said Act. 12. The learned Counsel for the petitioner no doubt urges that if in order to discharge the burden of proving the petitioner's plea of discharge, the petitioner has to lead evidence first and that the said burden is, for some reason not discharged the petitioner could not have the alternate opportunity of getting the dismissal of the suit on the ground that the plaintiff has not produced the original of the mortgage deed. But, this argument has no merit. The petitioner, having admitted the execution of the mortgage deed and passing of consideration, he cannot get the dismissal of the suit, when the discharge of mortgage is not proved. So, the order sought to be revised does not "occasion a failure of justice or cause irreparable injury" to the petitioners within the meaning of the said phrase under proviso (b) to Section 115, C.P.C. It is also evident that proviso (a) therein also will have no application to the present case. So also there can be no interference under Section 115, C.P.C. It is clear as rightly observed by the trial Court that the petitioner is only trying to protract the trial of the suit. Further, the present I.A. is a sheer abuse of process of Court on the part of the petitioner. 13. So also there can be no interference under Section 115, C.P.C. It is clear as rightly observed by the trial Court that the petitioner is only trying to protract the trial of the suit. Further, the present I.A. is a sheer abuse of process of Court on the part of the petitioner. 13. Further, I do not think that the order sought to be revised would amount to "as case which has been decided" within the meaning of the expression in Section 115, C.P.C. In this connection, the following observations of the Supreme Court in Baldev Das v. Film star Distributors, may also be seen: But it was not decided in Major S.S. Khanna's case , that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of the Code of Civil Procedure. 14. I do not think that any substantive right or obligation of the parties in controversy has been adjudicated in passing the impugned Order 15. This civil revision petition is, therefore, not admitted, but dismissed.