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2005 DIGILAW 664 (MAD)

Pauvel Raj v. Palaniammal

2005-04-16

R.BANUMATHI

body2005
Judgment :- (Petition filed under Section 115 C.P.C against the fair and decretal order dated 2.1.2003 made in I.A.876 of 2002 in O.S.809 of 2001 by the Principal District Munsif, Trichy.) This Revision is preferred against the fair and decretal order of the Principal District Munsif, Trichy made in I.A.876/2002 in O.S.No.809/2001 dated 2.1.2003, dismissing the petition filed under Rule 76 C.P.C to call for the Attendance Register from the Government Hospital, Pallapatti. Defendant is the Revision Petitioner. 2. The case of the Respondent / Plaintiff is that on 17.8.1998, the Defendant borrowed a sum of Rs.15,000/- from the Plaintiff for family expenses and executed a suit Promissory Note in favour of the Plaintiff on the same day, agreeing to repay the principal amount together with interest. Inspite of repeated demands and issuance of legal notice, the Defendant has not paid the amount. Hence, suit O.S.809/01 was filed by the Respondent / Plaintiff for recovery of Rs.20,400/- and subsequent interest and costs. 3. Denying the borrowal from the Plaintiff, the Defendant has filed written statement contending that in the year 1994 he has borrowed a sum of Rs.1,000/- from one Ramalingam, who is the husband of the Plaintiff. The said Ramalingam obtained signature in the blank Promissory Note from the Defendant along with one Yesuraj. The Defendant has paid the borrowed amount to the said Ramalingam but he has not returned back the blank Promissory Note containing his signature. Now, the said Ramalingam has set up his wife for filing this vexatious suit. The Defendant is not liable to pay any amount on the suit Promissory Note. 4. On the above pleadings, issues were framed. Parties adduced evidence. Witnesses were examined on the Plaintiff's side. On the Defendant's side, Defendant examined himself as D.W.1. At this stage, the Defendant has filed I.A.876/02 under Rule 76 C.P.C to call for the Attendance Register from the Government Hospital, Pallapatti. In the cross-examination, P.W.3 has stated that the suit Promissory Note was executed at 3.00 p.m in the Plaintiff's house at Trichy on 17.8.1998. According to the Defendant, on 17.8.1998, he was on duty in the Government Hospital,Pallapatti, Karur District from 7.00 a.m. To 7.00 p.m. and hence, the Defendant could not have executed the suit Promissory Note. To Substantiate his contention, the Defendant has filed the application I.A.876/02 to send for the Attendance Register from the Government Hospital, Pallapatti. 5. According to the Defendant, on 17.8.1998, he was on duty in the Government Hospital,Pallapatti, Karur District from 7.00 a.m. To 7.00 p.m. and hence, the Defendant could not have executed the suit Promissory Note. To Substantiate his contention, the Defendant has filed the application I.A.876/02 to send for the Attendance Register from the Government Hospital, Pallapatti. 5. The application was resisted by the Respondent / Plaintiff stating that in the course of cross examination of D.W.1, he has explicitly admitted the genuineness of his signature in the suit Promissory Note. Under such circumstances, the presumption under the Negotiable Instruments Act is to be raised. The document called for / Attendance Register, cannot override the explicit admission of D.W.1 and the evidence adduced on the side of the Respondent / Plaintiff. 6. Upon consideration of the submissions made by both sides, the learned District Munsif dismissed the application finding that that in the written statement the Defendant has not pleaded that he was on duty in the Government Hospital, Pallapatti on 17.8.1998. Pointing out that nowhere in the written statement the Defendant has taken the plea about his non-availability at Trichy on 17.8.98. The Learned District Munsif found that the document called for is not a relevant document in determining the issues arising in the suit and on those grounds, dismissed the application. 7. Aggrieved over the dismissal of his application, the Revision Petitioner / Defendant has preferred this Revision. The Respondent / Plaintiff was served through her counsel appearing in the lower Court; but the Respondent / Plaintiff has not entered appearance. Heard the counsel for the Revision Petitioner / Defendant. 8. Drawing the attention of the Court to the written statement, learned counsel for the Revision petitioner has submitted that the denial of the execution of suit Promissory Note is well pleaded in the written statement, but the same was not properly taken note of by the trial Court. Pointing out the answers of P.W.3 that the suit Promissory Note was executed at 3.00 p.m on 17.8.98, learned counsel has submitted that the Defendant being on duty from 7.00 a.m. To 3.00 .p.m on 17.8.98 in the Government Hospital at Pallapatti is relevant which would discredit the Plaintiff's case that the suit Promissory Note has been executed on 17.8.98 at 3.00 p.m.. Submitting that Rule 76 C.P.C provides to call for the records from the Public Offices, learned counsel has submitted that the trial Court has erred in dismissing the application to call for the Attendance Register. 9. In the light of the submissions made by the Revision Petitioner / Defendant and other materials on record, the following points arise for consideration in this Revision: 1. Whether the Attendance Register is a relevant document necessary to be called for? 2. Is there not proper exercise of discretion in refusing to call for the document / Attendance Register from the Government Hospital, Pallapatti? 10. In the written statement, Defendant has pleaded that he has borrowed the amount of Rs.1,000/- only from Ramalingam, the husband of the Plaintiff, Palaniyammal. Further case of the Defendant is that he has paid back the amount to the said Ramalingam. But the said Ramalingam has not returned the Promissory Note; but the said Ramalingam has set up his wife and filed the suit. It is relevant to note that the Defendant was examined as D.W.1 and during his cross-examination, he has admitted his signature in the suit Promissory Note. 11. In the cross examination, the attestor, who was examined as P.W.3, has stated that the Suit Promissory Note was executed at 3.00 p.m on 17.8.98 in the Plaintiff's house at Trichy. Taking advantage of such answer elicited from P.W.3, to disprove the same and to dis-credit the plaintiff's case of execution of the Promissory Note on 17.8.98, the Defendant has filed the application to send for the Attendance Register from the Government Hospital, Pallapatti. Learned counsel for the Revision Petitioner / Defendant has submitted that travelling time between Pallapatti and Trichy is nearly one hour and when the Defendant was on duty on 17.8.98 from 7.00 a.m. To 3.00 p.m, the defendant could not have travelled to Trichy to borrow the amount and execute the Promissory Note and further submitted that to substantiate the same, the Attendance Register is a relevant document to be called for. 12. As pointed out by the trial Court, in the written statement, the Defendant has not adopted the stand that he was on duty in the Government Hospital at Pallapatti on 17.8.98 and has not specifically denied execution of suit Promissory Note. His denial is not specific. 12. As pointed out by the trial Court, in the written statement, the Defendant has not adopted the stand that he was on duty in the Government Hospital at Pallapatti on 17.8.98 and has not specifically denied execution of suit Promissory Note. His denial is not specific. As per Order 8 Rule 3 C.P.C, the denial in the written statement has to be specific. Order 8 Rule 3 reads thus: "It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of the fact of which he does not admit the truth, except damages." Though the Defendant has stated that he has borrowed the amount only from the Plaintiff's husband Ramalingam, there is no specific denial of execution of the suit Promissory Note on 17.8.98. Likewise, the defendant has not set forth the fact that he was on duty in the Government Hospital Pallapatti from 7.00 a.m. To 3.00 p.m. 13. As per Order 13 Rule 1 C.P.C.,documents are to be produced on or before the settlement of issues. The Defendant has not produced the Attendance Register nor has called for the Attendance Register at the commencement of the trial for the purpose of cross examination of the witness. During cross examination of P.W.3, answer was elicited from him that the suit Promissory Note was executed at 3.00 p.m on 17.8.98. With a view to discredit the same and execution of the suit Promissory Note, Defendant has filed the application to call for the Attendance Register from the Government Hospital Pallapatti. The trial Court has rightly dismissed the same on the ground that the document is not relevant for determining the issues. 14. Let us assume for the sake of arguement that the Defendant was on duty in the Government Hospital, Pallapatti; but that by itself cannot be the conclusive proof to discredit the case of the Plaintiff. As per the Attendance Register, the Defendant might have been on duty. But the possibility of the Defendant leaving the hospital with or without permission, cannot be ruled out. During office hours, the possibility of the Defendant travelling to Trichy is also to be taken note of. The document / Attendance Register called for would not in any way substantially advance the case of the Defendant. But the possibility of the Defendant leaving the hospital with or without permission, cannot be ruled out. During office hours, the possibility of the Defendant travelling to Trichy is also to be taken note of. The document / Attendance Register called for would not in any way substantially advance the case of the Defendant. There is no improper exercise of discretion in the refusal to call for the document. 15. The application has been filed under Rule 76 C.P.C Rule 76 C.P.C. only enables the party to apply to the Court for obtaining certificate from the Court to enable him to obtain such copy of the document from the appropriate authority. Rule 76 is not the correct provision to call for the documents. Rule 75 C.P.C is the appropriate provision for making application for production of records in the custody of the Public Officer other than the Court. Rule 75(2) C.P.C reads thus: "Every application for such summons shall be made by a verified petition setting out (i) the document or documents the production of which is required, (ii) the relevancy of the document or documents, and (iii) 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." Nowhere in the petition it is stated as to whether the Defendant has sought for certified copy of the Attendance Register or the result of such application. The provisions of Rule 75(2) c.P.C. is also not complied with and the order of dismissal is to be confirmed on this score also. 16. There is no improper exercise of the discretion in refusing to send for the Attendance Register from the Government Hospital, Pallapatti. The impugned order does not suffer from any serious infirmity warranting interference by this Court. This Revision is bereft of merits and is liable to be dismissed. 17. Therefore, the order of Principal District Munsif,Trichy in I.A.No.876/2002 in O.S.809/01 (2.1.2003) is confirmed and this Revision petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. In the circumstances of the case, there is no order as to costs. The trial Court is directed to dispose of the suit within two months from the date of receipt of a copy of this order.