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Andhra High Court · body

2004 DIGILAW 1032 (AP)

Sidda Lingamma v. Sidda Lingamma

2004-09-20

ELIPE DHARMA RAO

body2004
ELIPE DHARMA RAO, J. ( 1 ) THOUGH notices were served on 9-9-2004, there is no appearance on behalf of the respondents either in person or through their counsel to oppose this petition. ( 2 ) AGGRIEVED by the order of dismissal dated 13-2-2004 passed by the Junior Civil judge, Madakasira in I. A. No. 56 of 2004 in o. S. No. 124 of 1996 filed under Rule 129 of civil Rules of Practice, to issue summons to the Mandal Revenue Officer, Amarapur for production of I-B register standing in the name of the petitioner for the suit schedule property, the present civil revision petition is filed. ( 3 ) THE case of the petitioner is that the 1st respondent in collusion with the Village administrative Officer got tampered the 10-1 Chitta and fabricated pattadar passbook and title deed in her name and filed into the Court. Therefore, the petitioner sought permission for production of 1-B register through the Mandal Revenue officer, Amarapur. ( 4 ) ON the other hand, the respondents filed a counter denying the averments made in the petition. It is stated that the question of summoning of the above said register does not arise since the Mandal Revenue Officer has already issued title deed and pattadar passbook to them and that the said documents were filed long back and without preferring any appeal before the revenue authorities, the present petition has been filed. ( 5 ) ON considering the material available on record, the learned Junior Civil Judge, held that the petitioner without approaching the authorities concerned for obtaining I-B register straightaway filed this application and that the suit is coming for further evidence of plaintiff and thereby dismissed the application. Aggrieved by the same, the civil revision petition has been filed by the petitioner. ( 6 ) ( 7 ) LEARNED counsel for the petitioner contends that since the 1st respondent in collusion with the Village Administrative officer tampered the records and fabricated the pattadar passbook and title deed in respect of the suit schedule property, it is absolutely necessary to produce the I-B register by summoning the Mandal Revenue officer for proper adjudication of the issue. He further submits that if the register sought to be summoned is produced no prejudice would be caused to the case of the respondents. ( 8 ) I have perused the material on record. He further submits that if the register sought to be summoned is produced no prejudice would be caused to the case of the respondents. ( 8 ) I have perused the material on record. For proper adjudication of the lis it is apt to extract sub-rules (1) to (3) of Rule 129 of civil Rules of Practice and it reads thus: ( 9 ) RULE 129: Production of records in the custody of a Public Officer other than a Court: (1) A summons for the production of records in the custody of Public officer other than a court shall be in form No. 23 and shall be addressed to the Head of the Office concerned and in the case of summons to a district Registrar or Sub-Registrar of Assurances, it shall be addressed to the Registrar or Sub-Registrar in whose office or sub-office, as the case may be, the required records are kept: provided that, where the summons is for the production of village accounts including field measurement books, such summons shall be addressed to the Tashildar or to the Deputy Tahsildar in independent charge as the case may be. Provided further that when the summons is for the production of records in the custody of high dignitaries like the Speaker of the Lok- sabha or State Legislative Council etc. , the summons shall be in the form of a letter of request in Form No. 23-A. (2) Every application for such summons shall made by an affidavit setting out (1) the document or documents the production of which is required; (2) the relevancy of the document or documents; and (3) in cases where the production of a certified copy would answer the purpose, whether application was made to the proper officer for a certified copy or copies and the result of such application. (3) No Court shall issue such summons unless it considers the production of the original necessary or is satisfied that the application for a certified copy has been duly made and has not been granted. The Court shall in every case record its reasons in writing and shall require the applicant to deposit in court, before the summons is issued, to abide by the order of the Court, such sum as it may consider necessary to meet the estimated cost of making a copy of the document when produced. The Court shall in every case record its reasons in writing and shall require the applicant to deposit in court, before the summons is issued, to abide by the order of the Court, such sum as it may consider necessary to meet the estimated cost of making a copy of the document when produced. ( 10 ) BUT the learned Junior Civil Judge has extracted the Rule 129 (3) of Civil Rules of Practice at paragraph 8 of his Order in the following terms:"a summons for production of record in the custody of public officer other than the Court, no Court shall issue said summons unless it considers the production of the original is necessary or he satisfies with the application for a certified copy has been duly made and has not been granted. The court shall in every case record its reason in writing and shall require the applicant to deposit in Court, before summons is issued to abide any order from the court such summons as it may consider necessary to meet estimated costs of making as copy of the document when produced. " ( 11 ) A perusal of above sub-rule (3) of rule 129 extracted by the learned Junior civil Judge makes it clear that he has extracted some portion of sub-rules (1) and (2) and read it with sub-rule (3), as if they form part of sub-rule (3), unmindful of the fact that he is extracting sub-rule (3 ). As read above, sub-rule (1) speaks of production of records in the custody of public officer other than a court, in Form No. 23 and it shall be addressed to the Head of the Office concerned and in case if the summons are to a District Registrar or Sub-Registrar of assurances, it shall be addressed to the registrar or Sub-Registrar, in whose office or sub-office, as the case may be, the required records are kept. Two provisos are carved out to this General Rule, which speak firstly that where the summons is for the production of Village Accounts including field measurement Books, such summons shall be addressed to the Tahsildar or the Deputy tahsildar, in independent charge, as the case may be and secondly where the summons is for the production of records in the custody of high dignitaries like the speaker of the Lok Sabha or State legislative Council, etc. , the summons shall be in the form of a letter of request in Form n0. 23-A. ( 12 ) SUB-RULE (2) mandates that every application for such summons shall be made by an affidavit setting out the document or documents, production of which is required; relevancy of such document or documents and in case where the production of a certified copy would answer the purpose, the affidavit shall manifest whether the application was made to the proper officer for a certified copy or copies and the result of such application. ( 13 ) SUB-RULE (3) is relevant for the purpose of this case. This sub-rule puts a rider that unless the court considers the production of the original necessary or is satisfied that the application for a certified copy has been duly made and has not been granted, the court shall not issue such summons. In issuing such summons, the court shall record its reason in writing and shall require the applicant to deposit in court, before issuance of such summons, to abide by the order of the Court, such sum as it may consider necessary to meet the estimated cost of making copy of the document when produced. Thus sub-rule (3) is subject to fulfilling two conditions firstly production of the original is necessary and secondly, an application was made to the authority for issuance of certified copy and it was not issued. ( 14 ) PLACING these sub-rules in juxtaposition, now let us examine the case on hand. What all the reasons learned Junior civil Judge has enumerated in dismissing the petition are that it is not the case of the petitioner that she applied for a certified copy of IB Register to the Mandal Revenue Officer and without approaching the authority concerned for obtaining IB Register, straightaway filed the present petition before the court. It is further observed that the suit is of the year 1996 and it was coming up for further evidence of the plaintiff and at that stage, the petition was filed, that too after taking several adjournments. These reasons are not germane for consideration of the petition. It is further observed that the suit is of the year 1996 and it was coming up for further evidence of the plaintiff and at that stage, the petition was filed, that too after taking several adjournments. These reasons are not germane for consideration of the petition. It is the case of the petitioner that the IB Register was tampered with and if the petitioner makes an application for issuance of certified copy of the said record, in compliance of Rule 129, the authority may issue the certified copy as it is on record. Thus, it is not possible to verify the original record whether it is tampered or not. In such circumstances, approaching the authority for issuance of certified copy of the original does not serve any purpose. Therefore, in view of these facts and circumstances, the court below ought to have accepted the contention of the petitioner and issued summons for production of original IB Register, to the mandal Revenue Officer, after recording reasons and directing the petitioner to deposit estimated costs for taking copies of such original. The court below ought to have been careful in extracting the provision in the order impugned herein. It appears he had added certain portion and deleting the other to the Rule from the Statute Book, and therefore, it did not give any meaning to the learned Judge, which culminated into an improper and unjust finding. Therefore, the officers, adjudicating the right of the parties, are required to be careful and vigilant in dealing with the Ms. The court below, extracting improper provision of law, has went wrong in comprehending the Rule position and thus failed to consider the request made by the petitioner. For these two defects, the order impugned is liable to be set aside and is accordingly set aside. The Civil Revision Petition is accordingly allowed. No order as to costs.