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2008 DIGILAW 4175 (MAD)

Chinnusamy v. Rathinavelu

2008-11-13

M.VENUGOPAL

body2008
Judgment :- The civil revision petitioner/defendant/petitioner has projected this civil revision petition aggrieved against the order dated 25.06.2008 in I.A.No.574 of 2008 in O.S.No.299 of 2004 passed by the learned District Munsif, Sankari in dismissing the application filed by the revision petitioner/defendant under Order VIII Rule 3 of Civil Procedure Code. 2. The trial Court, while passing orders in I.A.No.574 of 2008, has inter alia opined that when the revision petitioner/defendant at the time of filing the written statement has stated that the receipt dated 01.02.2005 has been lost and inspite of the efforts to trace the same, the receipt could not be found out and later say that the said document has been found out has not been accepted and resultantly, has dismissed the application without costs. 3. The learned counsel for the revision petitioner/defendant submits that the order of the trial Court in dismissing the I.A.No.574 of 2008 is against the provisions of Order VIII Rule 3 of Civil Procedure Code and that the trial Court has not followed the decision of the Honble Supreme Court reported in 2005 (6) SCC 344 whereby and whereunder the effect of the amendment of CPC has been considered and it has been held that the Court should be liberal in entertaining the application so as to give complete quietus to the litigation and further that the document dated 10.06.2003 has been referred to in the written statement itself by the revision petitioner/ defendant but the revision petitioner/defendant was not in a position to locate the same since he has misplaced it and subsequently, the said document has been traced out on 16.04.2008 and filed before the Court on 25.04.2008 and that the trial Court has denied an opportunity to the revision petitioner to prove his case and in any event, the trial Court ought to have seen that the earlier order closing the memo filed by the respondent/plaintiff on the basis of the endorsement made by the counsel will not stand in the way of producing before the Court and therefore, prays for allowing the revision to prevent aberration of justice. 4. 4. Contending contra, the learned counsel for the respondent/ plaintiff submits that in the memo an endorsement has been made by the counsel on 01.02.2005 to the effect that the receipt dated 10.06.2003 has not been produced because the same has been lost and therefore, the said memo has been closed and to say that the said receipt has been found out after searching the boxes in his house and later on handing over the same on 16.04.2008 to the Advocate has not been accepted by the trial Court and that the trial Court has rightly dismissed the application assigning cogent and convincing reasons thereto. 5. The learned counsel for the revision petitioner/plaintiff in support of his contention that a production of document at any subsequent stage of legal proceedings can be permitted if "good cause" is shown relies upon the decision of this Court P.S. Pandian V. Annai Velanganni Films rep. By its Partner Mrs. Savithri Devaraj, Chennai and another ( 2002 (3) CTC 92 ) wherein this Court has observed that once bona fides of party is proved power should be exercised to meet the ends of justice etc. He also cites the decision in V.S. Govinda Achari Trust V. Nagarathnammal @ Pattammal ( 2002 (2) CTC 38 ) wherein this Court has inter alia held that interest of justice requires that plaintiff is entitled to seek reopening of evidence and mark documents relating to competence of Managing Trustee to maintain suit on behalf of trust etc. 6. In the instant case on hand, the respondent/plaintiff has given a memo under Section 66 of the Indian Evidence Act to the revision petitioner/defendant asking him to produce the receipt dated 10.06.2003 before the Court and it appears that an endorsement has been made on 01.02.2005 that the receipt has been lost and accordingly, the said memo has been closed. Admittedly, the plea of the revision petitioner/defendant that he has found out the said receipt dated 10.06.2003 and later on handed over the same to his counsel on 16.04.2008, has not been accepted by the trial Court. It appears that P.W.1 has been examined in the main case and the matter is posted for evidence of defendants side to be adduced when P.W.1 has been in the witness box for the purpose of cross examination. It appears that P.W.1 has been examined in the main case and the matter is posted for evidence of defendants side to be adduced when P.W.1 has been in the witness box for the purpose of cross examination. It is not known as to why the revision petitioner/ defendant has not produced the said receipt dated 10.06.2003 and confronted the witness P.W.1. It is needless to point out that where a document is produced during cross examination of witness it can be projected only for the purpose of confronting or dislodging plaintiffs witness during cross examination, in the considered opinion of this Court. But such a recourse has not been resorted to by the revision petitioner/defendant. Suffice it to point out even though that processual justice should not be an irritant in the administration of justice, yet on the basis of facts and circumstances of the present case, this Court is of the considered view that application I.A.No.574 of 2008 filed by the petitioner/defendant cannot be allowed and resultantly, the civil revision petition fails and the same is hereby dismissed. 7. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court is confirmed for the reasons assigned by this Court in this revision. Liberty is given to the revision petitioner/defendant to project necessary application in the manner known to law as per the Civil Procedure Code and take steps to recall P.W.1 so as to confront him with the receipt dated 10.06.2003 and the trial Court is directed to deal with the said application on merits after providing opportunity to the other side to file counter. Consequently, connected miscellaneous petition is also closed.