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2005 DIGILAW 1065 (MAD)

C. Navaneetham v. Pappidevi & Another

2005-07-14

R.BANUMATHI

body2005
Judgment :- These revisions are preferred against the orders allowing the petition to re-open the case in O.S.No.580/ 1996; to recall PW-1, condoning the delay in filing the document under Or.XVII R.14 (3) CPC and section 151 CPC. 2. O.S.No.580/1996: The suit property is a house measuring 45 ft. on the North-South, 86½ ft. North-South on the West, 84-¼ ft. on the North-South on the East at Thirunagar Colony, Revenue Ward No.3, Municipal Ward No.5 of Erode Town. The Co-operative Building Society purchased a vacant land in T.S.No.19/2B measuring 4.27 acres. The lay-out was approved by the Erode Municipality and the house sites were sold to its members. The suit site was sold to one Ponnusami by a Sale Deed dated 23.10.1963. Under the Sale Deed dated 15.11.1978, the said Ponnusami sold the property to one Mohammed Abdul Khader and delivered actual possession of the entire properties. The said Mohammed Abdul Khader had sold the same to Mani @ Nagulan and Jagadeeswaran by a Sale Deed dated 21.12.1979. On 13.10.1980, the Plaintiff and the Defendants 2 and 3 have purchased the suit properties under registered Sale Deed for Rs.38,475/- from the said Mani @ Nagulan and Jagadeeswaran and were in actual possession of the suit property on the same date. The Plaintiff has been paying the Property Tax to Erode Municipality. House site West of the suit 'A' Schedule property was purchased by D-1 from Erode Cooperative Building Society. She has been enjoying the said site keeping the same as vacant. The purchasers around the suit property have constructed houses. On or about 20.7.1981, the first Defendant has trespassed into the western portion of the suit 'A' schedule property and the wrongly occupied a piece of land measuring 10 ½ ft. East-West and 86 ½ ft. North-South and dug a foundation for a well and built up to the ground level. Encroached portion is separately shown as 'B' Schedule property. Therefore, the Plaintiff has filed the suit – (a) to declare the absolute title of the Plaintiff and Defendants 2 and 3 over 'B' Schedule property. (b)directing Defendants 1 and 4 to delivery possession of 'B' Schedule property to the Plaintiff and Defendants 2 and 3 ; (c)directing Defendants 1 and 4 to pay the mesne profits from the date of suit till the date of declaration of possession and other reliefs. (b)directing Defendants 1 and 4 to delivery possession of 'B' Schedule property to the Plaintiff and Defendants 2 and 3 ; (c)directing Defendants 1 and 4 to pay the mesne profits from the date of suit till the date of declaration of possession and other reliefs. 3.The fourth Defendant Navaneedan has also filed another suit in O.S.No.571/1996. O.S.No.571/1996 was decreed. O.S.No.580/1996 was dismissed. As against the Judgment, the Plaintiff-Pappidevi has filed the Appeals before the District Court, Erode. By the common Judgment in A.S.Nos.114 and 115 of 1999 the Judgment of the Court below in O.S.No.571 and 580/1996 were set aside and the cases were remitted back to the trial Court for affording further opportunity to the parties to examine the President or Special Officer of the Cooperative Society or the Municipality Commissioner, Erode and afford opportunity to parties to adduce further evidence. 4.After the remand, the parties have adduced further evidence. When the matter was posted for arguments, on 5.12.2000, three applications have been filed to re-open the case and to recall PW-1 and for the purpose of marking the document – Survey Plan issued by the Municipality. The applications are - 5.By filing elaborate counter statement, the Revision Petitioner/D-4 raised strong objections to the petitions, alleging that the Municipal Commissioner of Erode Municipality was previously summoned even before the First Appellate Court, who stated that the approved lay out plan for Thirunagar Colony must have been prepared and the same is not available in the Erode Municipal Office. After the Plaintiff closed her side, the Revision Petitioner/D-4 had taken out commission for noting down the physical features to the suit properties, as well as the properties situated on the immediate North of the suit properties. The Commissioner has submitted his report with plan on 14.10.2003. After the fourth Defendant has closed his side, the suit was posted for arguments on 5.12.2003. At that stage, the Plaintiff has filed the application producing the plan claiming to be the Town Survey Plan. The said document is a fabricated plan and cannot be admitted. The Report filed by the Advocate Commissioner is elaborate, noting down all the relevant physical features of the houses and the vacant sites in the locality. There is no necessity to reopen the Plaintiff side or for recalling PW-1 to mark the document. The said document is a fabricated plan and cannot be admitted. The Report filed by the Advocate Commissioner is elaborate, noting down all the relevant physical features of the houses and the vacant sites in the locality. There is no necessity to reopen the Plaintiff side or for recalling PW-1 to mark the document. 6.Upon consideration of the averments in the affidavit and in the counter statement, the learned District Munsif allowed the applications. The learned District Munsif was of the view that the Appeal A.S.No.115/1999 was remitted mainly for the purpose of adducing further evidence and to afford opportunities to the parties to produce necessary documents and in view of the remand order, the Plaintiff has to be given an opportunity to produce the Survey Plan and on those reasonings, allowed all the three applications. 7.Aggrieved over the order of reopening the case, to recall PW-1 and to mark the Municipal Survey Plan, the Revision Petitioner/D-4 has preferred these revisions. 8.A.S.Nos.114 and 115 of 1999 have been remanded for the second time by the Judgment dated 31.01.2002. After remand, parties adduced evidence. At the instance of D-4, the Commissioner was also appointed, who had noted the physical features of the suit properties as well as the properties situated on the immediate North of the suit properties. The Commissioner has filed his report with Plan on 14.10.2003. After D-4 has closed his evidence, the case O.S.No.580/1996 was posted for arguments on 05.12.2003. At that time, the Plaintiff has filed the application for reopening the case for the purpose of producing the document – Topo-sketch issued by the Erode Municipality. 9.The receiving of the document and reopening the case for the purpose of admitting the document has been strongly objected to by D-4 on the ground that even in the First Appellate Court, it was informed that the approved lay-out plan for Thirunagar Colony was not available in the Erode Municipal Office. It is contended that when the First Appellate Court was so informed about the non availability of topo-sketch of Thirunagar Colony, the same cannot be allowed to be received at the fag end of the trial and when the case has been posted for arguments. Drawing the attention of the Court to the affidavit the learned counsel for the Revision Petitioner submitted that absolutely no reasons are stated for re-opening the case. Drawing the attention of the Court to the affidavit the learned counsel for the Revision Petitioner submitted that absolutely no reasons are stated for re-opening the case. It is the further contention that the application has been belatedly filed when the matter was posted for arguments to delay the proceedings. 10.The learned counsel for the Respondent has submitted that the document sought to be marked is a approved plan issued by the Erode Municipality, and it is an essential document. It is further submitted that the case has been remanded mainly for the purpose of adducing additional evidence. It is also further submitted that the copy of the plan was not earlier available and that could be obtained only after the evidence was closed. The learned counsel for the 1st Respondent/Plaintiff has urged that an opportunity is to be given to the Plaintiff to produce essential documents. It is further submitted that when the trial court has exercised the discretion in condoning the delay to receive the document and directed reopening of the case and recalling of the witness, the High Court may not interfere with the order of the trial court. Submitting that exercising of the revisional power of the High Court is purely discretionary, the learned counsel for the first Respondent/Plaintiff has placed reliance upon 1970 (1) MLJ 234 (Chennichi @ Parikkal Vs. D.A.Srinivasan Chettiar). 11.After remand, during recording further evidence, CPC Amendment Act (with effect from 1.7.2002) came into force. Applications I.A.Nos.1512 to 1514/2003 were filed on 05.12.2003. Hence, only the amended provisions of Civil Procedure Code is applicable to the applications. Application I.A.No.1514/2003 is filed under Or.VII R.14 (3) CPC to condone the delay in not filing the documents earlier. Or.VII R.14(3) CPC the following sub-rule is substituted viz., "3.A document which ought to be produced in Court by the Plaintiff, when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave or the Court, be received in evidence on his behalf at the hearing of the suit." 12.The documents may be produced by the Plaintiff or by the Defendant, as the case may be, with the leave of the Court at the time of the hearing of the suit where such documents could not be filed by the Plaintiff along with the plaint. The object is to avoid delay in the trial of the case. 13.Under CPC (Amendment) 1999 if any document or a copy thereof could not be filed with the plaint under this rule, it could not be allowed to be received in evidence on behalf of the Plaintiff at the hearing of the suit. There was complete embargo on the power of the Court and any such document could not be received in evidence at a later stage. This provision was found too harsh and so the provision has been modified by the CPC (Amendment) Act, 2002, and now such document may be received in evidence with the leave of the Court, which the Court shall grant in genuine cases. Obviously the object of this provision is to avoid delays in the trial of the cases. But in genuine cases, the Court shall grant leave to receive the document. 14.It is incumbent upon the Plaintiff to produce into the Court copy of the records on which he bases his claim. Admittedly, lay out plan of Thirunagar Colony was not found earlier. In other words, the document was not traceable. So it was submitted in the First Appellate Court that the sketch for Thriunagar Colony is not available. Likewise, during the trial, the Plaintiff could not produce the document. Since the sketch was not available/not traceable, rigour of Or.VII R.14(3) CPC cannot be applied. It appears to be a genuine case for granting leave to produce the document at a later stage. 15.Or.XIII R.1 CPC confers upon the Court, the discretion to allow production of documents, if satisfied if the good cause shown. The main object of Or.XIII R.1 CPC is to prevent the parties from manufacturing evidence, pending trial. However, if good cause is shown to the satisfaction of the Court for the non-production of the documents at the earliest stage, the Courts are expected to receive the documents giving an opportunity to the party. Normally, permission is to be granted to file copies of judicial records, revenue records and other documents of Local Administration, which were not within the knowledge of the parties. 16.Or.13 R.1 CPC confers upon the Court, discretion to allow the production of documents. In exercising the distinction, under R.2, Court may condone the delay and allow the Plaintiff to produce the documents (Prior to CPC Amendment 2002). Now after Amendment, Or.XIII R.2 CPC is omitted. 16.Or.13 R.1 CPC confers upon the Court, discretion to allow the production of documents. In exercising the distinction, under R.2, Court may condone the delay and allow the Plaintiff to produce the documents (Prior to CPC Amendment 2002). Now after Amendment, Or.XIII R.2 CPC is omitted. 17.A document of vital importance stated as not traceable earlier may not be withheld from introduction in evidence due to delay in production. Delay in production of the document could be condoned invoking Or.VII R.14(3) CPC. Document sought to be produced is – Topo sketch of Thirunagar issued by the Erode Municipality. The document – Survey Plan is said to be a document of importance. According to the Petitioner/Plaintiff, the plan was not traceable earlier and that she was able to obtain the plan for the suit property only after the trial was over. There is no reason to discard the same. Production of the document cannot be withheld merely on account of delay. Doubts have been raised on the authenticity of the document produced (Topo sketch of Thirunagar). The document cannot be declined to be received merely on the ground of doubts raised by the Revision Petitioner. It is open to the fourth Defendant to cross examine the witness on that aspect; if necessary to recall witness from Erode Municipality also for verification of authenticity of the Survey Plan issued. 18.In the interest of justice, the trial court has exercised the discretion ordering to receive the document and to recall PW-1 and also to reopen the case. The learned counsel for the first Respondent/Plaintiff has submitted that when the trial court has exercised its discretion, there is no justifiable reason for the High Court to interfere in it, exercising its powers under Section 115 CPC. In support of his contention, the learned counsel has relied upon the decision reported in 1970 (1) MLJ 234 (Chennichi @ Parikkal Vs. D.A.Srinivasan Chettiar), wherein this Court has held, "The exercise of the revisional powers of the High Court under section 115, Civil Procedure Code, is purely discretionary." This decision cannot be applied to the case in hand, since the presence revisions are filed under Article 227 of the Constitution of India. D.A.Srinivasan Chettiar), wherein this Court has held, "The exercise of the revisional powers of the High Court under section 115, Civil Procedure Code, is purely discretionary." This decision cannot be applied to the case in hand, since the presence revisions are filed under Article 227 of the Constitution of India. 19.It is well settled that Article 227 of the Constitution of India could be invoked – only when there is lack of jurisdiction, erroneous assumption of jurisdiction or excess of jurisdiction or where there is gross dereliction of duty, flagrant violation of law, error of law apparent on the face of the record and where the finding is based on no material. The power under Article 227 of the Constitution of India has to be used sparingly. 20.The impugned order does not suffer from any jurisdictional error warranting interference. Mere delay in production of the document cannot be the reason to decline the receipt of the document. On the facts and circumstances of the case, this Court finds that there is no valid reason to interfere with the order of the trial court, exercising its power under Section 115 CPC. For the reasons stated above, all these three revisions are bound to fail. 21.For the reasons stated above, orders of Principal District Munsif, Erode, made in I.A.Nos.1512, 1513, 1514/2003 in O.S.No.580/1996 are confirmed and these revisions are dismissed. I.A.No.1514/2003 – application to condone the delay in producing the document – topo sketch from the Erode Municipality is allowed and the delay in production of the document is condoned. The document is ordered to be received. The learned Principal District Munsif is directed to reopen the case and recall PW-1 and mark the plan produced by the Plaintiff (subject to any objection raised by the fourth Defendant). The learned District Munsif is further directed to afford sufficient opportunity to the Revision Petitioner/4th Defendant to cross-examine PW-1 on the document and if necessary, to recall the witness from Erode Municipality for the purpose of further cross examination for verification of the document issued by the Municipality. On the above directions these revisions are dismissed. C.M.P.No.7083/2004 is also dismissed. In the circumstances of the case, there is no order as to costs. On the above directions these revisions are dismissed. C.M.P.No.7083/2004 is also dismissed. In the circumstances of the case, there is no order as to costs. 22.Since the suit is of the year 1996, the learned Principal District Munsif, Erode is directed to dispose of the suit within two months from the date of receipt of a copy of this order.