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2006 DIGILAW 3144 (MAD)

Subarayalu Naidu v. Arikrishnan & Others

2006-11-20

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition is filed against the order dated 27.8.2004 in I.A.No:2259 of 2004 in O.S.No:789 of 1999 passed by the learned III Additional District Munsif, Pudhucherry. ) The revision petitioner is the plaintiff in O.S.No.789 of 1999 before the III Additional District Munsif, Pudhucherry. He filed the suit for declaration of his absolute title and for permanent injunction restraining the respondents/defendants from interfering with hs peaceful possession and enjoyment. When the suit was taken up for trial, the petitioner filed necessary and relevant documents to prove his title and possession. The respondents filed documents to prove their title to the property which is situated n the eastern side of the suit property. After examination of witnesses, the suit was posted for arguments. 2. At that stage, the petitioner/plaintiff wanted to produce certain additional documentary evidence, which he was not able to produce earlier as he could not trace them earlier. The non production of the said documents was neither willful nor wanton. Therefore, the petitioner filed three I.A., one to reopen the case, another to recall P.W.1 and the other to receive the additional documents. The additional documents sought to be produced by him are (i) Encumbrance certificate dated 9.11.1984 (ii) Construction certificate (iii) Plan and (iv) payment receipts. 3. According to the petitioner he has given sufficient reasons by filing separate affidavits in the respective applications. But the trial court numbered only the first application to reopen the case and did not even number the other applications and returned the papers. Ultimately the trial court also dismissed I.A.No:2259 of 2004 which was filed to reopen the case holding that the name of the witnesses and the list of documents were not given. 4. Learned counsel for the revision petitioner contended that the trial court ought to have numbered all the three applications and looked into the reasons given in the three affidavits to arrive at a final decision between the parties. Learned counsel also contended that there is no delay in filing the three applications as within 15 days from the date of evidence was closed, the three applications have been filed. 5. Learned counsel also contended that there is no delay in filing the three applications as within 15 days from the date of evidence was closed, the three applications have been filed. 5. Learned counsel for the revision petitioner also relied upon the decision of the Hon'ble Supreme Court reported in 2001 (3) SCC page 1, to hold that opportunity to be given to the parties to put forth their entire case supported by oral and documentary evidence. The said decision has also been followed by this Court in the decisions reported in 2002 (3) CTC 92 ; 2000 (2) CTC 453 ; 2006 (3) LW 973 . 6. On the other hand, the learned counsel appearing for the respondents contended that the plaintiff has deliberately suppressed the factum of registered sale deed executed by him on 26.2.1983 under Document No.169 of 1983 registered in the Sub Registrar Office, Bahour to and in favour of the 4th defendant for valid consideration with regard to suit property. The defendants in their written statement have clearly stated the factum of the suit property having been purchased from the plaintiff which is being used as a pathway and road to have access to the houses of the defendants. The 4th defendant in turn has sold the said property to defendant No.2 under registered sale deed dated 8.10.1999. In the counter the defendants have prayed for counter claim by way of decree for permanent injunction and also paid necessary court fees in that regard. 7. According to the learned counsel for the respondents, the suit was filed in the year 1999 and the examination of witnesses on both sides over by 29.6.2004 and when the case was posted for arguments of the counsels, the plaintiff has filed the application in I.A.No.2259 of 2004 for reopening the case to adduce certain additional documents. The defendants also filed counter and finally the said I.A.No.2259 of 2004 was dismissed by the impugned order in this revision. 8. Learned counsel for the respondents further submitted that as per amended Order VII Rule 14 (3) CPC which came into effect from 1.7.2002, the plaintiff should have filed the documents at the stage of enquiry on his side with condone delay petition if not already filed along with the plaint at the time of institution of the suit. 8. Learned counsel for the respondents further submitted that as per amended Order VII Rule 14 (3) CPC which came into effect from 1.7.2002, the plaintiff should have filed the documents at the stage of enquiry on his side with condone delay petition if not already filed along with the plaint at the time of institution of the suit. But that stage is crossed and the suit has been posted for argument i.e, the suit has reached the final stage. 9. A perusal of the affidavit filed in support of the Interlocutory Application filed to reopen the case does not contain necessary details or reason and in fact it was bald and bereft of any material facts. A careful scrutiny of the affidavits filed in the other two applications, which were returned by the learned District Munsif, would only show that similar affidavit has been filed in the said two applications as well. Only in the third application which was filed to receive the documents the reason for non production of the documents have been given. Here also he has given two contradictory versions. One of the reason is that the plaintiff has applied for some more documents and got the same recently from the Government Department and filing the same into court. In the next line he has stated that he is also filing documents which were able to be traced by him recently which were misplaced by him at the time of filing of the suit. The documents sought to be adduced are (i) Encumbrance Certificate, dated 9.11.1984, (ii) Construction Certificate; (iii) Plan and (iv) Payment receipts. The plaintiff has not given particulars which are the documents he has obtained from the Government Departments and which are the documents he initially misplaced and traced recently. Further, if the Encumbrance Certificate is dated 9.11.1984, it means that it has been obtained on 9.11.1984 and it could not have been obtained from the concerned Department in the year 2004 as alleged in the affidavit. 10. Further, if the Encumbrance Certificate is dated 9.11.1984, it means that it has been obtained on 9.11.1984 and it could not have been obtained from the concerned Department in the year 2004 as alleged in the affidavit. 10. Further, Section 151 of the Code cannot be pressed into service as an appellate provision over the prescription of Rule 14(3) of Order VII CPC and as has been held by the Hon'ble Supreme Court in 1970 (1) SCC 732 wherein it is also held that the Court cannot make use of the special provisions of 151 of Procedure Code where a party had his remedy provided elsewhere in the Code i.e., under amended Rule 14(3) of Order VII CPC and the plaintiff neglected to avail himself of the same. 11. For these reasons, I am not inclined to interfere with the order of the learned District Munsif, Mettur. Therefore, the Civil Revision Petition is dismissed. Consequently, connected CMP is also dismissed. No costs.