Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1293 (MAD)

Sakunthala v. Tahsildar & Another

2005-08-08

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition filed under Article 227 of the Constitution of India, against the order dated 19.02.2004 passed by the XVI Assistant City Civil Judge, Chennai in I.A.No.7610 of 2003 in O.S.No.5282 of 1998, as stated therein.) This Civil Revision Petition is preferred against the order dated 19.02.2004 passed by the XVI Assistant City Civil Judge, Chennai in I.A.No.7610 of 2003 in O.S.No.5282 of 1998, dismissing the Petition filed under Order XVI Rule 1 C.P.C. declining to issue subpoena to the Official Witnesses to produce the documents. The Plaintiff is the Revision Petitioner. 2. O.S.No.5282 of 1988:- The Suit property originally belonged to one Kamalammal, who was separated from her Husband. The Plaintiff and the Second Defendant set up rival claims, claiming that they are entitled to the Suit property through Kamalammal. According to the Plaintiff, she is the Sister’s Daughter of Kamalammal. The Second Defendant claims that she is the Daughter of Krishnaveni, who is the Daughter of Kamalammal. According to the Plaintiff, she was brought up by the Deceased – Kamalammal and that the Second Defendant has no right or interested in the Suit property. The Plaintiff has filed the Suit to declare that the transfer of Patta for the Suit Property effected by the First Defendant – Tahsildar, Egmore is null and void and for other reliefs. 3. The Second Defendant has filed the Written Statement denying the allegations in the Plaint and setting forth their elaborate defence. The name of the Second Defendant was incorporated in the Patta even as early as on 05.01.1974. Patta has been in the joint name of Kamalammal and the Second Defendant all along. The claim of the Plaintiff that she came to know about the same on 07.03.1998 is false, which has been put forth only for the purpose of the frivolous Suit. The Second Defendant being a Daughter of Krishnaveni is entitled to the Suit Property and the Plaintiff has no basis of right or Title in the Suit Property. 4. Onbehalf of the Plaintiff, Witnesses were examined. The Plaintiff’s evidence was closed. At the time when the case was posted for the Defendant’s evidence, the Second Defendant produced certain documents, including the Death Certificate of Krishnaveni issued by Tirupathy Municipality / State of Andhra Pradesh. 4. Onbehalf of the Plaintiff, Witnesses were examined. The Plaintiff’s evidence was closed. At the time when the case was posted for the Defendant’s evidence, the Second Defendant produced certain documents, including the Death Certificate of Krishnaveni issued by Tirupathy Municipality / State of Andhra Pradesh. At that stage, the Plaintiff has filed I.A.No.7610 of 2003 to issue subpoena to the Official Witnesses stated thereon in the Petition – The Revenue Divisional Officer, Tirupathy and Dean, Women and Children Hospital, Egmore, Chennai and other officials to produce the documents stated in the Petition. According to the Plaintiff, after those documents have been produced, the Plaintiff’s Counsel had made investigations in Tirupathy Municipality and understood that the registration of death of Krishnaveni at Tirupathy in 1959 was made by influencing the Revenue Officials and the Death Certificate of Krishnavei is suspicious one. It is also alleged that the Birth Certificate produced by the Second Defendant is also suspicious and Dean of Women and Children Hospital, Egmore, Chennai is to be summoned to inform the Court about the Birth Register / Entry of the Second Defendant. 5. The Application was strongly resisted by the Second Defendant contending that the said Application has been filed only to delay the Trial Proceedings. In the Counter Statement, it is alleged that the Revenue Divisional Officer, Tirupathy had not been cited as one of the Witnesses before the Trial commenced. The Affidavit and the Petition filed are not in accordance with Order 16 Rule 1 C.P.C. The object is only to create confusion in the mind of the Court throwing doubts on the authenticity of the documents produced by the Defendant. 6. Upon consideration of the rival contentions of both parties, learned Assistant Judge dismissed the Petition finding that no list of documents / Witnesses had earlier been produced. It was held that if the documents are so essential, the Plaintiff herself could have produced the certified copy of the documents. It was further held that when steps had not been taken to secure the Certified Copy of the documents, summons cannot be issued to the official Witnesses to produce the documents. 7. Aggrieved over the order of dismissal of the Application, the Plaintiff has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner has contended that the Trial Court ought to have investigated into the matter by issuing summons to the Official Witnesses. 7. Aggrieved over the order of dismissal of the Application, the Plaintiff has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner has contended that the Trial Court ought to have investigated into the matter by issuing summons to the Official Witnesses. It is further submitted that when the documents have been filed only in 2003, the Plaintiff had to take steps to call for the copy of the documents. It is submitted that the power under Order 16 Rule 1 C.P.C is very wide and the Court has got the power to call for the documents, though the document has been called for from the State of Andhra Pradesh / Tirupathy Municipality. Elaborate arguments were advanced that when suspicion are raised relating to the documents produced by the Second Defendant, it is necessary to call for the original documents. 8. Countering the arguments, learned counsel for the Second Defendant has submitted that the Revision Petition itself is not maintainable. Submitting that when the Suit has been in the part-heard stage, the Application was filed delaying the further proceedings. Assailing the Petition, learned counsel for the Respondent has drawn the attention of the Court to the Affidavit filed onbehalf of the Plaintiff by one K.Ramamoorthy, who is said to be the Office Manager of the Plaintiff’s counsel. It is further submitted that the Plaintiff must prove the case on her own pleadings and that she cannot fall upon the defence or raising suspicion on the Defendants documents. Learned counsel for the Second Respondent has also submitted that the Dean of Women and Children Hospital, Egmore, Chennai is a non existing person and summons cannot be issued. 9. Upon consideration of the contentions of both parties and the Impugned Order, the following two points arise for consideration in this Civil Revision Petition:- i.Whether the Lower Court was not justified in declining to issue subpoena to the Official Witnesses calling for the Petition mentioned documents. ii.Whether the Impugned Order suffers from any material irregularity warranting interference exercising the power under Article 227 of the Constitution of India? 10. Even at the outset, it is to be noted that the Affidavit in I.A.No.7610 of 2003 filed under Order 16 Rule 1 C.P.C was not filed by the Plaintiff. Onbehalf of the Plaintiff, one Ramamoorthy, who is said to be the Office Manager of the Plaintiff’s Counsel has filed the Affidavit. 10. Even at the outset, it is to be noted that the Affidavit in I.A.No.7610 of 2003 filed under Order 16 Rule 1 C.P.C was not filed by the Plaintiff. Onbehalf of the Plaintiff, one Ramamoorthy, who is said to be the Office Manager of the Plaintiff’s Counsel has filed the Affidavit. In the Affidavit, it is alleged that the Plaintiff is very unwell and unable to swear an affidavit and her Husband who is conducting the proceedings on her behalf is also out of station, which has necessitated the Office Manager of the Plaintiff Counsel to file the Affidavit. Signatures of the Plaintiff or inability of the Plaintiff’s Husband does not justify a third person affirming certain aspects relating to the case. The Suit was in part heard stage. The Plaintiff was examined as P.W.1 and on her behalf, other evidence was adduced. The Suit being in the part heard stage falsifies the claim that she was very unwell. The reasons stated in the Affidavit by the Office Manager who is the deponent are not convincing. 11. The Trial commenced. Onbehalf of the Plaintiff, P.Ws.1 to 3 have been examined and the Plaintiff’s evidence was closed. After few adjournments, the case was adjourned for the Second Defendant’s evidence. At that stage, the Second Defendant had filed an Application under Order 13 Rule 2 C.P.C to condone the delay in filing the three documents. The Petition was allowed and the delay was condoned and the Court has received the documents including the Death Register Extract of Krishnaveni issued by Tirupathy Municipality. At that stage, the Application has been filed raising suspicion as to the genuineness of the Death Certificate of Krishnaveni issued by Tirupathy Municipality. 12. Onbehalf of the Plaintiff, it is alleged that the death of Krishnaveni has been recorded in 2002 due to political pressure and the R.D.O. had given directions and in view of the influence, the death of Krishnaveni had been entered in the Register of 1959 in the year 2002. According to the Plaintiff, the death of Krishnaveni at Tirupathy in 1959 had been entered into only in 2002. Further allegations are made that one Gurrammal (not at all connected with the family of the parties) is alleged to have informed the officials about the death of Krishnaveni and the disputed entry of death of Krishnaveni has been entered in 2002. Further allegations are made that one Gurrammal (not at all connected with the family of the parties) is alleged to have informed the officials about the death of Krishnaveni and the disputed entry of death of Krishnaveni has been entered in 2002. On the above allegations, Petition has been filed requesting the Court to issue subpoena to the Official Witnesses to produce the following documents : "Summons to the Revenue Divisional Officer, Tirupathi, A.P to produce the following documents: i. Application dated Nil of one Gurrammal, 16-6-423, Karnala Street, Tirupathi; ii.Report of the Mandal Revenue Officer, Thirupathi Urban Mandal, dated 24.12.2002 in his D/2027/2002; iii.Order of the Revenue Divisional Officer, Tirupathi in his D.Dis M/2768/2002 dated 07.02.2003. Summons to the Dean, Women and Children’s Hospital, Egmore, Chennai to produce if there is any entry of birth of one Saraswathy, Female Child, in the Hospital on 22.04.1959 as Daughter of one Krishnaveni”. 13. Even by perusal of the above list of documents, it is clear that the Plaintiff seeks for issuance of summons which are either not available or impossible of production. The First Document is Application (dated Nil) of Gurrammal sought to be produced by the Revenue Divisional Officer. It would be extremely difficult for the officials to trace any such application, which has been undated. The Death Extract has been issued by Tirupathy Municipality. On the other hand, the Plaintiff seeks for Report of the Mandal Revenue Officer, Tirupathi Urban Mandal dated 24.12.2002. In the supporting Affidavit filed by the Office Manager of the Plaintiff’s Counsel, no averments have been made as to how the Report of the Mandal Revenue Officer has any link with the Death Register Extract. Curiously neither the Plaintiff nor her Husband has sworn in the Affidavit. When the Death Extract had been issued by Tirupathy Municipality, it is unnecessary to call for the records / documents from the Mandal Revenue Officer as alleged by the Plaintiff. If at all there was any Report of the Mandal Revenue Officer and the Order of Revenue Divisional Order, the Plaintiff could very well apply for the certified copy and produce the Certified Copy. 14. The Plaintiff has also requested the Court to issue subpoena to the Dean, Women and Children’s Hospital, Egmore, Chennai to produce the document, if there is any birth of one Saraswathi – Second Defendant born on 22.04.1959 as the Daughter of one Krishnaveni. 14. The Plaintiff has also requested the Court to issue subpoena to the Dean, Women and Children’s Hospital, Egmore, Chennai to produce the document, if there is any birth of one Saraswathi – Second Defendant born on 22.04.1959 as the Daughter of one Krishnaveni. The description of the document by itself is beyond comprehension. As submitted by the learned counsel for the Second Defendant, Women and Children’s Hospital, Egmore, Chennai has no post of "Dean”. The Plaintiff is not justified in seeking for issuance of subpoena to a non existing official. Likewise, the document has been sought to be produced as investigative in nature to know whether there was any birth entry of Saraswathy in the year 1959. The power under Order 16 Rule 1 C.P.C cannot be exercised for investigation purpose as requested by the Plaintiff. Further, it is highly doubtful that the Hospital Authorities would be maintaining birth records of 1959. It is relevant to note that for the Corporation Limits of Chennai, the Birth Register Extracts are issued only by the Corporation. It is not proper for the Plaintiff to seek issuance of subpoena to the Dean, Women and Children’s Hospital, Egmore, Chennai to produce the records in finding out any entry of Birth of one Saraswathy in the year 1959. 15. Order 16 Rule 1 C.P.C enables the Court to issue summons to documents and the officials to whom subpoena is sought to be taken must be clearly narrated. In the absence of clear description of the documents and the documents sought for being investigative in nature, the Court below has rightly declined to issue subpoena to the Official Witnesses, calling for the documents. 16. Making elaborate submissions, learned counsel for the Respondent / Second Defendant has submitted that the Suit which has been filed for declaring that patta issued in the name of the Second Defendant is null and void itself is not maintainable. In support of his contention that Patta is not document of Title, learned Counsel for the Respondent relied upon the decision reported in GURUVAMMAL AND ANOTHER ..VS.. SUBBIAH NAICKER AND OTHERS ( 1999 (III) C.T.C. 650 ). Further placing reliance upon the decisions reported in PRAVIN KUMAR ..VS.. P.RAJESWARAN (100 L.W. 895) and KANDASAMY UDAYAR ..VS.. In support of his contention that Patta is not document of Title, learned Counsel for the Respondent relied upon the decision reported in GURUVAMMAL AND ANOTHER ..VS.. SUBBIAH NAICKER AND OTHERS ( 1999 (III) C.T.C. 650 ). Further placing reliance upon the decisions reported in PRAVIN KUMAR ..VS.. P.RAJESWARAN (100 L.W. 895) and KANDASAMY UDAYAR ..VS.. T.S.KARUPPUDAYAR (1982 L.W. 99), it is submitted that the Plaintiff cannot abandon her case and adopt the case of the Defendant nor raise the doubts regarding the documents produced by the Defendant. In this Civil Revision Petition, the scope of enquiry is very limited to the extent in finding out whether there was any propriety in the exercise of discretion in declining to issue subpoena to the Official Witnesses. In this Civil Revision Petition, this Court cannot express any view on the above points urged by the Respondent. Lest, it might affect the contentions of the parties, who are at the trial stage. 17. Contending that the Revision Petition under Section 115 C.P.C is not maintainable, learned counsel for the Respondent has also drawn the attention of the Court to the decision reported in CHINNARAJA NAIDU ..VS.. BAVANIBAI (1981 T.L.N.J. 166). The finding in the above said decision is not applicable to the case on hand as the present Revision Petition has been filed under Article 227 of the Constitution of India. 18. Subpoena is sought to be issued merely on the basis of the allegations, which are based upon the surmises raised onbehalf of the Plaintiff. Learned Assistant Judge has rightly declined to issue subpoena to the Official Witnesses, calling for the documents. The Impugned Order does not suffer from any jurisdiction error or error apparent on the face of records, warranting interference under Article 227 of the Constitution of India. This Civil Revision Petition has no merits and is bound to fail. 19. For the foregoing reasons, the order dated 19.02.2004 of the XVI Assistant Judge, City Civil Court, Chennai in I.A.No.7610 of 2003 in O.S.No.5282 of 1998 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. Consequently, the connected C.M.P.No.7315 of 2004 is dismissed. Learned XVI Assistant Judge, City Civil Court, Chennai is directed to dispose of the Suit within a period of three months from the date of receipt of copy of this order.