Research › Search › Judgment

Madras High Court · body

2003 DIGILAW 353 (MAD)

Murugesan v. Karuppayee Ammal and another

2003-03-04

A.RAMAMURTHI

body2003
ORDER: Defendant in O.S. No.572 of 1997 on the file of Additional District Munsif Court, Karur, has preferred the present revision petition aggrieved against the fair and decretal order dated 30.3.2001 made in I.A. No.212 of 2000. 2. The case in brief is as follows: The defendant in the suit filed a petition under Sec.145 of the Evidence Act and under Sec.151 of Civil Procedure Code to mark the portion of the admission of the second plaintiff in O.S. No.640 of 19994 on the file of District Munsif Court, Karur and also the judgment in the suit as well as the Commissioner’s report filed in that suit. 3. The plaintiffs filed the present suit for permanent injunction. The Ist plaintiff already filed another suit in O.S. No.292 of 1998. There was already another suit in O.S. No.640 of 1994, in which the 2nd plaintiff herein ws also examined as one of the witnesses and the certified copy of the deposition given by him is now filed. He was examined as P.W.3 in that case. Even in the chief-examination, he admitted that there is a east-west kavar immediately on the north of the property i.e., S.F.No.740. Now, when the 2nd plaintiff was examined in the present case, he gave an evasive reply that he was not aware. The certified copy of the deposition has to be marked. Similarly, the judgment and Advocate Commissioner’s Report and plain in O.S. No.640 of 1994 also have to be marked in the present suit. 4. The respondents/ plaintiffs opposed the application on the ground that the plaintiffs were not parties in O.S. No.640 of 1994 and the certified copies in the other proceedings cannot be marked straightaway without examining the parties relating to the same. It is false to state that the 2nd plaintiff had admitted the existence of east-west kavar and also admitted the Commissioner’s report. It is settled provision of law that the report of the Commissioner in one suit cannot form part of record in another suit, without examination of Commissioner and marking report through him. The judgment cannot be marked in this case since it is inadmissible in evidence. The recitals in a judgment like finding given in appreciation of evidence made or arguments or genealogies referred to in the judgment, would be wholly inadmissible in a case, where neither the plaintiff nor the defendants were parties. The judgment cannot be marked in this case since it is inadmissible in evidence. The recitals in a judgment like finding given in appreciation of evidence made or arguments or genealogies referred to in the judgment, would be wholly inadmissible in a case, where neither the plaintiff nor the defendants were parties. The petition is highly speculative and mala fide one. If it is allowed, they will be put to much loss and hardship. 5. The trial Court after hearing the parties, dismissed the application and aggrieved against this, the defendant has come forward with the present revision petition. 6. The points that arise for consideration are: (1) Whether the order passed by the Court below is proper and correct? (2) Whether the copy of the Commissioner’s report, copy of the judgment and the copy of deposition in O.S. No.640 of 1994 on the file of District Munsif Court, Karur, can be marked in the present suit? (3) To what relief? 7.Points: The plaintiffs filed the suit for permanent injunction relating to the suit property. The defendant in the suit filed a petition under Sec.145 of the Evidence Act and also under Sec.151 of Civil Procedure Code for reception and marking of three documents, namely, (1) certified copy of the deposition given by the 2nd plaintiff herein as P.W.3 in O.S. No.640 of 1994, (2) copy of the judgment in the said suit, and (3) copy of the report and plan filed by the Commissioner in the very same suit. The respondents/ plaintiffs opposed the application. The trial Court dismissed the application. The learned counsel for the revision petitioner/ defendant contended that there can be no objection to mark the Commissioner’s report and plan in the earlier proceedings, which relate to the suit properties in which the petitioner is a party and is entitled to rely upon the same. The certified copy of the judgment in which the petitioner is also a party can be received in evidence by examining the petitioner as a party. The 2nd respondent herein has admitted the rights of the parties in respect of the suit property and to establish his admission, the copy of the deposition is relied upon. It is well settled in law that a party, who has knowledge about the documents, sought to be produced and who is a party to those documents can certainly produce the same as evidence. 8. It is well settled in law that a party, who has knowledge about the documents, sought to be produced and who is a party to those documents can certainly produce the same as evidence. 8. No doubt, the defendant herein was a party in O.S. No.640 of 1994; but it is necessary to state that the plaintiffs in O.S. No.572 of 1997 were not parties in O.S. No.640 of 1994. When the plaintiffs were not parties to the earlier suit, simply because the revision petitioner was a party, all the documents cannot be received without proper proof. No doubt, the 2nd plaintiff herein admitted that he gave evidence as P.W.3 in the other suit and if that be so, when the 2nd plaintiff was in the box he can be confronted with the evidence given by him as P.W.3 in the other suit and the portion which are denied by him can be marked for the purpose of contradicting his testimony. Similarly, the report and plan filed by the Advocate Commissioner in the earlier suit also can be marked only by examining the Advocate Commissioner, so that the plaintiffs/ respondents herein will have an opportunity to cross examine him. However, the certified copy of the judgment in the earlier suit can be received and marked and there cannot have any serious objection on the part of the respondents. 9. The learned counsel for the revision petitioner relied on the decision in Sita Ram v. Ramchandra, A.I.R. 1977 S.C. 1712, wherein it has been observed ass follows: "If the admission is proved in accordance with the provisions of the Evidence Act and if it is to be used against the party who had made it, it is sound that if a witness is under cross examination on oath, he should be given an opportunity, if the documents are to be sued against him, to tender his explanation and to clear up the point of ambiguity or dispute. This is a general salutary and intelligible rule". 10. It has been held in C.Kailaschand Jain and others v. Mohamed Kasim, (1995)1 M.L.J. 267 : (1995)1 C.T.C. 47 , that the report of the Commissioner in one suit cannot form part of recording in another suit without examination of Commissioner and marking report through him. However, since Commissioner’s report was marked by consent the same is admissible in evidence. 11. However, since Commissioner’s report was marked by consent the same is admissible in evidence. 11. It has been held in Bipin Shantilal Panchal v. State of Gujarat and another, (2001)3 S.C.C. 1 , as follows: "Practice of passing detailed order allowing or rejecting the objection and then giving time by suspending trial to enable the parties concerned to move the higher Court against such interlocutory order, held, not proper - Instead Court should make a notice of such objection and decide it at the last stage of the final judgment - This procedure has to be followed except where the objection relates to deficiency in stamp duty of a document". 12. It is, therefore, clear from the aforesaid decisions and discussion that the documents in some other proceedings can be marked only subject to certain conditions. So far as this case is concerned, the certified copy of the judgment in O.S. No.640 of 1994 can be marked and the relevancy or otherwise of the same can be considered at the time of final arguments in the case. So far as the report and plan filed by the Advocate Commissioner, it can be marked by examining the Advocate Commissioner only. In respect of the deposition of the second plaintiff, it can be marked only in the cross-examination of the 2nd plaintiff if he is examined in this suit. Hence, the points are answered accordingly. 13. For the reasons stated above, the revision petition is allowed in part and the Court below is directed to receive and mark the certified copy of the judgment in O.S. No.640 of 1994 and the relevancy can be considered at the time of final hearing of the case. The report and plan filed by the Commissioner can be marked only be examining the Advocate Commissioner in the case. Similarly, the deposition of the 2nd plaintiff as P.W.3 in the other suit can be marked only in the cross-examination if and when the 2nd plaintiff is examined in the case. No costs. Consequently, C.M.P. No.10088 of 2001 is closed.