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2001 DIGILAW 1091 (AP)

Kudupudi Subba Rao v. Kudupudi Satyanarayanamma

2001-09-24

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THE short, but a peculiar and interesting question, which arises for consideration in the present revision is whether an unmarked document in a suit produced by more than one party can be returned only to one of such parties despite the specific objection raised by the other party. ( 2 ) THE facts in nutshell are as follows: in the suit OS No. 124/91 on the file of II additional Junior Civil Judge, Amalapuram, East Godavari District, the revision petitioner/ 2nd plaintiff and the 7th respondent/3rd plaintiff in the said suit filed memos through their respective Counsel for returning an unmarked Will dated 25-1-1999 and the Court below had ordered the said Will to be delivered to the 3rd plaintiff after due identification by his Counsel. The 2nd plaintiff, who is none other than the brother of the 3rd plaintiff aggrieved by the impugned docket order dated 26-6-2000 in Memo SR No. 3085/2000 in OS No. 124/91 on the file of II Additional Junior Civil Judge, Amalapuram, had preferred the present Revision. ( 3 ) SRI S. Ravikanth, Counsel representing the revision petitioner had contended that the Court below had totally erred in directing to handover the Will dated 25-1-1999 to the 7th respondent herein, hereinafter referred to as "3rd plaintiff for the purpose of convenience. The learned Counsel also had contended that the Will was produced by both the Revision Petitioner, hereinafter referred to as "2nd plaintiff for the purpose of convenience, and also the 3rd plaintiff together in IA no. 136/99 under Order 22, Rule 3 CPC. The learned Counsel also had contended that the Court below should have considered that Sri P. S. Ramachandra Murthy alone is the Advocate on record and hence the unmarked document should have been returned to the said Sri P. S. Ramachandra Murthy only on the strength of the memo filed by him. The learned Counsel also further contended that the 3rd plaintiff without obtaining the consent or no-objection from the Advocate on record Sri P. S. Ramachandra Murthy, had engaged another Counsel Sri A. V. S. Prasad for getting return of the document and the Court below had made the impugned order to deliver the unmarked document, to such a Counsel, which is totally illegal and unsustainable. The learned Counsel also had brought to my notice that despite the filing of IA No. 470/ 2000 by way of an out of order motion, the 3rd plaintiff had managed the matter otherwise and got return of the said Will and by virtue of the return of such unregistered Will to the 3rd plaintiff, in view of the differences and misunderstandings between the parties, the 2nd plaintiff is put to serious prejudice and his valuable rights relating to the properties are in jeopardy. ( 4 ) SRI P. Udaya Bhaskar Rao, the learned Counsel representing the 7th respondent-3rd plaintiff had contended that in view of Order 13, Rule 7 CPC the Court below had exercised the discretion properly and since the 3rd plaintiff had sworn to the affidavit filed in support of the application IA No. 136/99 in OS No. 124/91 on the file of II Additional Junior Civil Judge, Amalapuram, the impugned order is just and reasonable and in fact the Court below had recorded reasons why it had ordered handing over of the unregistered Will to the 3rd plaintiff after due identification made by his Counsel. The learned Counsel also had taken me through the material available on record and also the reasons recorded by the Court belong in the impugned order. ( 5 ) HEARD both the Counsel and also perused the material available on record. Order 13 of the Code of Civil Procedure, hereinafter in short referred to as "code" deals with production, impounding and return of documents. Order 13, Rule 7 of the Code deals with recording of admitted and return of rejected documents and the said Rule reads as follows: (1) Every document which has been admitted in evidence, or a copy thereof where a copy has been substituted for the original under Rule 5, shall form part of the record of the suit. (2) Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them. The Andhra Pradesh amendment is same as that of Madras and there is a proviso to Order 13, Rule 7 (2) of the Code, which reads : "provided that no document shall be returned which by force of the decree has become wholly void or useless". The Andhra Pradesh amendment is same as that of Madras and there is a proviso to Order 13, Rule 7 (2) of the Code, which reads : "provided that no document shall be returned which by force of the decree has become wholly void or useless". Sub-rule (2) of Rule 7 of Order 13 of the Code specifies that documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them. The words ". . . . . shall be returned to the persons respectively producing them" are important and also material for the purpose of deciding the present question. It is not in dispute that the Will was produced by both the brothers, the 2nd plaintiff and the 3rd plaintiff. The ground on which the Court below directed the handing over of the Will to the 3rd plaintiff is that the affidavit in the application when the Will was produced before the Court was sworn to by the 3rd plaintiff. However, it is pertinent to note that both the 2nd plaintiff and the 3rd plaintiff had filed the application and it may be that the 3rd plaintiff might have sworn to the affidavit. But that by itself does not mean that the 3rd plaintiff alone is entitled to the return of the unmarked document. In the Law of Affidavits, New Edition 1999, by me, while dealing with the term "affidavit" I had expressed: "affidavit is a term or expression which is normally understood as a written statement sworn to the facts before an authority competent to administer oath. Affidavits can be accepted in support of Interlocutory applications and applications of substantive nature. Affidavits are not included in the definition of evidence under Section 3 of the Indian Evidence Act and can be used as evidence only if for sufficient reason the Court passes an order under Order 19, Rules 1 and 2 of CPC. " the mere swearing to the affidavit by the 3rd plaintiff will not put him on a better footing when compared to the 2nd plaintiff and hence in view of the expression ". . . . . " the mere swearing to the affidavit by the 3rd plaintiff will not put him on a better footing when compared to the 2nd plaintiff and hence in view of the expression ". . . . . shall be returned to the persons respectively producing them" in sub-rule (2) of Rule 7 of Order 13 of the Code, even the 2nd plaintiff along with the 3rd plaintiff will be entitled to the return of the unmarked document. In Har Gobind and others v. Noni Bahu, ILR 14 All. 356, it was held that a document which is not admitted in evidence, cannot be treated as a document forming part of the record although it can be amongst the papers on record. Apart from this aspect of the matter, it appears that the 3rd plaintiff had changed his Counsel even without obtaining "no-objection" from the Counsel on record. Order 3 of the Code deals with recognised agents and pleaders and Rule 4 of Order 3 of the Code deals with appointment of pleader. The 3rd plaintiff, for reasons best known to him, may be owing to the differences with the 2nd plaintiff, might have thought of engaging another Counsel and no doubt he is at liberty to do so, but by following the procedure. Be that as it may, I do not want to further comment upon this aspect of the matter and i leave it to the wisdom of the Counsel in this regard. In R. D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264 , the Apex Court had observed that a social duty is cast upon legal profession to show the people beacon light by their conduct and actions. In Sait Bharat Kumar v. Venkayala Ratnamanikyam, 2001 (4) ALT 740 , at page 743, certain observations have been made relating to the members of the legal fraternity and the trend of degeneration in the profession. This is a case involving the return of an important document - the Will, and it is also pertinent to note that both the 2nd and the 3rd plaintiffs are concerned with and interested in the return of the said document. The reasons for the 3rd plaintiff alone to take return of the said document by adopting such a method are unknown. The reasons for the 3rd plaintiff alone to take return of the said document by adopting such a method are unknown. In a matter of this nature, I am of the considered opinion that the Court below should have insisted the respective parties to move regular applications instead of acting on memos. The practice of return of the documents on formal memos wherever there are certain disputes should be deprecated by the Courts of law and it is always desirable to insist upon the parties to file regular applications supported by proper affidavits and decide the matters in accordance with law. Inasmuch as the 3rd plaintiff had already received the unmarked Will, the Court below shall take steps to see that the said Will is redeposited again into the Court and then permit both the parties to file necessary applications in accordance with law and decide what will be the best course to be adopted as per law relating to such an important document involving the legal rights of the parties. ( 6 ) FOR the reasons recorded above, the impugned order is set aside and the civil revision petition is allowed to the extent as specified above and in view of the relationship of the parties, the respective parties do bear their own costs.