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2005 DIGILAW 1078 (MAD)

G. Subramaniam & Another v. M. G. Jayarama Mudali

2005-07-15

R.BANUMATHI

body2005
Judgment :- This revision arises out of the order of District Munsif, Pallipattu made in I.A.No.72/2004 in O.S.No.182/ 2001 (dated 9.3.2004) allowing the application filed under Or.13, R.2 CPC condoning the delay in filing the document. The Defendants are the Revision Petitioners. 2.The relevant facts for this revision could briefly be stated thus :- O.S.No.218/1997 - District Munsif Court, Thiruttani, ransferred to District Munsif Court, Pallipattu renumbered as O.S.No.182/2001 : The suit property relates to the house in D.No.55/1, Thoppu Street, Athimanjeripet Village, Pallipet Taluk and the western wall thereon. Case of the Plaintiff is that the Defendants' house is in Door No.56/1 on the Western Side of the Plaintiff's house in D.No.55/1. The Defendants have no right over the suit wall. The Defendants have requested the Plaintiff to rest their tiled house beam on the side wall and the Plaintiff has consented for the same. The Defendants have rested the tiled house beam on the suit wall and have also slopped all the tiles towards the western side wall. Rain water falls inside the house of the Plaintiff. The Defendants have also fixed water pipelines to the western side wall. The Defendants have also rested cement sheets on the suit wall. They have also fixed up electrical pipelines on the Western side wall of the Plaintiff. Because of such acts, during rainy season, the rain fall caused weakening effect on the wall. While so, the Defendants have been digging a drainage wall adjacent to the western side wall which is likely to endanger the wall. Hence the Plaintiff has filed the suit - (i)for declaration of his title to the suit property – house in D.No.55/1 on the western side wall thereon; (ii)for permanent injunction restraining the Defendants from in any way interfering with the possession and enjoyment of the suit property, including the suit wall and preventing them from digging the drainage into the wall; (iii)for a mandatory injunction directing the Defendants to remove the wooden beam and the asbestos sheets, electrical pile lines on the wall and also the water pipe lines; (iv)and other reliefs. 3.Denying the allegations in the plaint, the Defendants have filed the Written Statement contending that their house bearing D.No.56/1, absolutely belong to the Defendants' ancestors and the house was constructed about sixty years ago by the Defendants' ancestors. 3.Denying the allegations in the plaint, the Defendants have filed the Written Statement contending that their house bearing D.No.56/1, absolutely belong to the Defendants' ancestors and the house was constructed about sixty years ago by the Defendants' ancestors. The brothers of the Defendants have partitioned their joint family properties on 5.9.1956 under registered Partition Deed and the house in D.No.1/56 was allotted to the Defendant. The house was constructed by the ancestors of the Defendants and the first Defendant has perfected his title to the house and the wall, by adverse possession. Now the house has been transferred in the name of the second Defendant. The Defendants never constructed any house nor inserted any beam on the suit wall. It is already resting on the suit wall. The Defendants never dug any channel or pipe line in the suit property. Hence the question of damage to the wall does not arise. Leveling false allegations, the Plaintiff has filed the suit and he is not entitled for any relief. 4.I.A.No.72/2004 in O.S.No.182/2001:- This application has been filed under Or.13, R.1 and 2 CPC to condone the delay in filing the document – Wall Agreement dated 27.4.1973. In the suit, the Plaintiff has referred to the Wall Agreement dated 27.4.1973. The Plaintiff has alleged that the Defendants have executed a letter on a stamped paper regarding the suit wall and the Plaintiff has sought to produce the document and has also prayed to condone the delay in producing the document. 5.The application was resisted by the Defendants contending that the document sought to be marked cannot be allowed for the reason that it is an unregistered one and hence inadmissible under Section 17 of the Indian Registration Act. It was further alleged that the document is insufficiently stamped and also inadmissible in evidence under Section 35 of the Indian Stamp Act. Since the document is insufficiently stamped, the document has to be sent for impounding the same and for ascertaining the market value. Considering the contentions of both parties, the learned District Munsif allowed the application on the ground that the evidentiary value of the document could be gone into at the time of hearing the arguments and Judgment. Referring to 2001 (3) SCC 1 , (Bipin Shantilal Panchal Vs. Considering the contentions of both parties, the learned District Munsif allowed the application on the ground that the evidentiary value of the document could be gone into at the time of hearing the arguments and Judgment. Referring to 2001 (3) SCC 1 , (Bipin Shantilal Panchal Vs. State of Gujarat and another), the lower Court found that the document could be received, subject to the objections, and the objections could be decided at the last stage of the Judgment. The learned District Munsif was also of the view that by condoning the delay, and receiving the document, no prejudice would be caused to the Respondents/Defendants. 6.Aggrieved over the allowing of the application and receiving the document, the Defendants have preferred this revision. The learned counsel for the Revision Petitioners has contended that when objections have been raised regarding the non-registration of the document and insufficiency of the stamp, the Court ought to have determined the issue of admissibility of the same and ought to have postponed till the last stage of hearing the arguments and the Judgment. Contending that when the objection has been raised relating to the payment of Stamp Duty, the lower Court erred in not properly appreciating the same and ordering to receive the document. 7.Countering the arguments, the learned counsel for the Respondent/Plaintiff has submitted that when the document was sought to be admitted, it is not open to the Court to go into the evidentiary value of the document. Placing reliance upon 2001 (2) CTC 391 , (S.Mohammad Ali Vs. Basheer Ahmed) it is submitted that object of Or.13 R.1 and 2 CPC is to serve the ends of justice and to prevent the parties from producing the document after a particular stage viz., after the settlement of the issue. It is submitted that the document was not traceable earlier, and when the Plaintiff has offered good cause for the delay, the lower Court has rightly condoned the delay in ordering reception of the document. It is further contended that any objection regarding the admissibility of the document could be gone into at the time of trial, while adjudicating the matter. 8.Main point that arises for consideration is, whether the impugned order directing reception of the document suffers from any serious error or material irregularity, calling for interference ? It is further contended that any objection regarding the admissibility of the document could be gone into at the time of trial, while adjudicating the matter. 8.Main point that arises for consideration is, whether the impugned order directing reception of the document suffers from any serious error or material irregularity, calling for interference ? 9.Or.13 R.1 CPC has been substituted by the new Rule as per which, all documentary evidence in original (where only copies were filed along with plaint or Written Statement) are required to be produced before the settlement of issues. Under the new Rule 14 (3), Or.VII and Rule 1-A(3) of Or.VIII CPC, documents not filed along with the Plaint or Written Statement cannot be received in evidence at the hearing of the suit. The Plaintiff ought to have produced, the documents or the copies of the documents, of those annexed to the list in the plaint. Similarly, the Defendants ought to have produced documents with the Written Statement by annexing a list to the Written Statement. The document in question – Agreement relating to suit wall dated 27.4.1973, has not been shown as a document in the list annexed in the Plaint, nor the copy of the document was produced along with the plaint. However, in the averments relating to the execution, in paragraph No.8, reference has been made to the agreement, executed by the first Defendant on 27.4.73 as :- "... on 27.4.1973, the date on which the 1st Defendant executed a letter on a stamped paper in favour of the Plaintiffs ..." 10.Above document - termed a Letter on a stamped paper, is sought to be produced, by filing the application under Or.XIII, R.2. The application I.A.No.72/2004 has been filed on 29.1.2004 after the Amendment Act came into force (with effect from 1.7.2002). Or.XIII Rule 2 has been omitted by the (Amendment) Act 1999. Hence after the amendment, such an application cannot be filed under Or.13 R.2 CPC. However, under Or.VII, R.14(3) CPC, Court has the power to receive the document which was not filed along with the plaint. Or.XIII Rule 2 has been omitted by the (Amendment) Act 1999. Hence after the amendment, such an application cannot be filed under Or.13 R.2 CPC. However, under Or.VII, R.14(3) CPC, Court has the power to receive the document which was not filed along with the plaint. After the CPC Amendment Act, 2002, Or.VII Rule 14(3) CPC reads : "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 amended to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf or the hearing of the suit." (underlining added). 11.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 onbehalf 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 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. Thus, if any document or a copy thereof could not be filed with the Plaint, it may be received in evidence with the leave of the Court, which the Court shall grant in genuine cases. Rigour of the Rule does not apply to the documents which are sought to be adduced as corroborative evidence in support of the claim made in the plaint. Or.VII R.14(3) enables the Court to receive the documents which were not filed along with the plaint in genuine cases. 12.Object of the provision is to secure fair trial and not to penalize the parties for non production of the documents. Conferring the power of the Court to receive the document in genuine cases, is to secure fair trial, so as to advance the cause of justice. A document of vital importance stated by the Plaintiff as not traceable earlier may not be withheld from producing in evidence, merely on the ground of delay in production of the same. Conferring the power of the Court to receive the document in genuine cases, is to secure fair trial, so as to advance the cause of justice. A document of vital importance stated by the Plaintiff as not traceable earlier may not be withheld from producing in evidence, merely on the ground of delay in production of the same. In the supporting affidavit, the Plaintiff has averred that he was able to trace the document only a week prior to the filing of the petition. There is no reason to doubt the same. The learned District Munsif has allowed the petition filed under Or.13 R.1,2 CPC. After the amendment, though Or.13 R.1, and 2 CPC cannot be invoked, the order is to be sustained under Or.7 R.14(3) CPC. 13.The main objection regarding the reception of the document is that the document is an unregistered document which is inadmissible in evidence, for want of registration. The impugned document dated 27.4.1973 is termed as "Rth; mf;Fghj;aij". The Relevant recitals read :: "b$auhk Kjypf;F //// Rg;gpukzpa Kjyp vHjpf; bfhLj;j Rth; mf;F ghj;jpaj;ij vd;dbtd;why; ehd; cd;Dila Rthpd; nghpy; ehd; cUl;L thrf;fhy; ruk; itj;Jf; bfhs;s cd;id ehd; nfl;Lf; bfhz;ljhy; eP cd;Dila Rtw;wpd; nghpy; vd;Dila cUl;L thrhypy; ruk; itj;Jf; bfhs;s ve;jtpjkhd gpujpgyDk; fhzhky; rk;kjpj;J eP cd; Rtw;wpd; nghpy; cd;Dila tPl;il hpg;ngh; bra;tjw;F vd;Dila Ml;nrgid vJt[k; ,y;iy/ i& Rth; cd;Dilanj jtpu vdf;F vd;Dila thhpRfSf;F ve;jtpjkhd rk;ge;jKk; mf;F ghj;jpaKk; ,y;iy i& cd;Dila Rtw;wpy; cdf;F vd;dhy; vJthfpYk;. el;lk; vw;gl;lhy; me;j el;lj;ij ehd; ghj;jpafhud; Mfpnwd;/ ,g;gof;F vd; rk;kjj;jpy; vHjpf; bfhLj;j mf;Fghj;aij/" 14.Whether the above recitals are in the nature of relinquishing the interest and whether the document needs registration or not, is to be seen only at the time of trial. Similarly, whether the document is to be stamped or whether the document is insufficiently stamped could also be gone into only at the time of trial. The Defendants cannot raise any valid objection for reception of the document. The Supreme Court in 2001 (3) SCC 1 , (Bipin Shantilal Panchal Vs. Similarly, whether the document is to be stamped or whether the document is insufficiently stamped could also be gone into only at the time of trial. The Defendants cannot raise any valid objection for reception of the document. The Supreme Court in 2001 (3) SCC 1 , (Bipin Shantilal Panchal Vs. State of Gujarat and another), held :: "Whether the objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final Judgment." Accordingly, the learned District Munsif has found that the question regarding the admissibility of the document could be gone into at the time of hearing the arguments. The learned counsel for the Revision Petitioners has contended that the above observation of the Supreme Court is not applicable when the objection is raised regarding the deficiency of stamp duty of a document and that the Court has to decide that objection before proceeding further. As noted earlier, whether the impugned document requires stamp duty itself has to be considered. Hence the objection cannot be said to be related to deficiency of stamp duty of a document, on which the Court is compelled to decide the objection. By receiving the documents, the Defendants are not deprived of their right to question or object to the document; but the same may be raised at the time of advancing arguments. Merely permitting production of document cannot be construed that the document had been automatically admitted in evidence. 15.Challenging the order, this revision has been filed for invoking the power of this Court under Art.227 of the Constitution of India. It is well settled that Art.227 of the Constitution of India could be invoked only in rare cases where there is error of law apparent on the face of the record or where there is erroneous assumption of jurisdiction or gross dereliction of duty. The impugned order does not suffer from any such jurisdictional error warranting interference. This revision has no merits and is bound to fail. 16.Therefore, the order of the District Munsif, Pallipattu made in I.A.No.72/2004 in O.S.No.182/2001 (dated 9.3.2004), is confirmed and this revision is dismissed. The impugned order does not suffer from any such jurisdictional error warranting interference. This revision has no merits and is bound to fail. 16.Therefore, the order of the District Munsif, Pallipattu made in I.A.No.72/2004 in O.S.No.182/2001 (dated 9.3.2004), is confirmed and this revision is dismissed. Consequently, CMP Nos.7093/2004 and 3859/2005 are also dismissed. In the circumstances of the case, there is no order as to costs.