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2009 DIGILAW 213 (AP)

M. Satyanarayana @ Peddaraju v. Katama Raju

2009-03-26

P.S.NARAYANA

body2009
Judgment : Common Order: C.R.P.No.614 of 2009 is filed by the revision petitioner-defendant being aggrieved upon an order dated 20-11-2008 made in I.A.No.583 of 2008 in O.S.No.416 of 2006 on the file of the Principal Junior Civil Judge, Adoni. Likewise C.R.P.No.717 of 2009 is filed by the self same revision petitioner-defendant being aggrieved upon an order dated 20-11-2008 made in I.A.No.582 of 2008 in O.S.No.399 of 2006 on the file of the Principal Junior Civil Judge, Adoni. 2. Heard Sri K. Sitaram, learned counsel representing the revision petitioner and Sri R.V. Nagabhushana Rao representing Sri R.V. Prasad, learned counsel representing the respondent, in both the C.R.Ps. 3. Sri K. Sitaram, learned counsel representing the revision petitioner-defendant in both the C.R.Ps, would maintain that the learned Principal Junior Civil Judge, Adoni totally erred in making the aforesaid orders, since there is no provision in the Code of Civil Procedure (for short ‘the Code’) which enables the court to return a document, which is marked in evidence as an exhibit. He also would maintain that the learned Judge ought to have seen that the trial of the suit had already commenced and Ex.A.1 was marked, and at that stage, if Ex.A.1 is allowed to be replaced, it would cause serious prejudice to the revision petitioner. He also would maintain that when the respective respondents in both the C.R.Ps/plaintiffs in both the suits - the father and the son, had not been diligent in prosecuting the litigations, orders of such nature could not have been made. Hence both the C.R.Ps have to be allowed. 4. On the contrary, Sri R.V. Nagabhushana Rao representing Sri R.V. Prasad, learned counsel representing the respondent in both the C.R.Ps, would maintain that it is just a bonafide mistake and in the light of the reasons, which had been recorded in detail, though Order XIII Rule 9 of the Code as such may not be applicable to the facts on hand, the learned Judge is well justified in making such an order under Section 151 of the Code. Hence, the orders under challenge need no disturbance at the hands of this Court, especially, under Article 227 of the Constitution of India. 5. Both the C.R.Ps are being disposed of by a common order, in view of the commonality of the facts and also the questions involved. 6. Hence, the orders under challenge need no disturbance at the hands of this Court, especially, under Article 227 of the Constitution of India. 5. Both the C.R.Ps are being disposed of by a common order, in view of the commonality of the facts and also the questions involved. 6. The applications aforesaid had been filed under Order XIII Rule 9 r/w Section 151 of the Code to send the promissory notes filed in the respective suits to the other suit. It appears both the father and the son filed two suits on the strength of promissory notes and due to a bonafide mistake of the clerk, the promissory note standing in the name of the father was filed in the suit filed by the son and likewise, the promissory note standing in the name of the son was filed in the suit filed by the father and inasmuch as this is a bonafide mistake, the promissory notes are either to be returned to the counsel representing the respective plaintiffs or to be sent to be filed in the appropriate suits. It is needless to say that both the suits are pending before the learned Principal Junior Civil Judge, Adoni. 7. The learned Judge, after formulating a point for consideration and recording the reasons at paras 6 and 7, relied on a decision in Gowardhan Das Vs. State of Maharashtra, AIR 2008 (NOC) 1755 (BOM.), and ultimately came to the conclusion that in the interest of justice it would be just and proper to send the document marked as Ex.A.1 to the appropriate suit, and accordingly, allowed the applications aforesaid. Aggrieved by the same, the present C.R.Ps had been preferred. 8. State of Maharashtra, AIR 2008 (NOC) 1755 (BOM.), and ultimately came to the conclusion that in the interest of justice it would be just and proper to send the document marked as Ex.A.1 to the appropriate suit, and accordingly, allowed the applications aforesaid. Aggrieved by the same, the present C.R.Ps had been preferred. 8. Order XIII Rule 9 of the Code dealing with return of admitted documents reads as hereunder: “(1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under Rule 8, be entitled to receive back the same— (a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and (b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of: [Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefore— (a) delivers to the proper officer for being substituted for the original— (i) in the case of a party to the suit, a certified copy, and (ii) in the case of any other person, an ordinary copy which has been examined, compared and certified in the manner mentioned in sub-rule (2) of Rule 17 of Order VII, and (b) undertakes to produce the original, if required to do so:] (2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.” Provided also, that no document shall be returned which, by force of the decree, has become wholly void or useless. 9. The Andhra Pradesh amendment is same as that of Madras, and Madras & Pondicherry amendment in this regard reads as hereunder: “Add the following as sub-rules (3), (4) and (5): (3) Every application for return of a document under the first proviso to sub-rule (1) shall be made by a verified petition and shall set forth facts justifying the immediate return of the original. (4) The Court may make such order as it thinks fit for the costs of any or all the parties to any application under sub-rule (1). The Court may further direct that any costs incurred in complying with or paid on application under sub-rule (1) or incurred in complying with the provisions of Rule 5 of this Order, shall be included as costs in the cause. (5) Subject to the provisions of Rule 8 above, where a document is produced by a person who is not a party to the suit and such person applies for the return of the document as hereinbefore provided and undertakes to produce it whenever required to do so, the Court shall, except for reasons to be recorded in writing, require the party on whose behalf the document was produced, to substitute with the least possible delay a certified copy for the original, and shall thereupon cause the original document to be returned to the applicant and may further make such order as to costs and charges in this behalf as it thinks fit. If the copy is not so provided within the time fixed by the Court, the original document shall be returned to the applicant without further delay.” 10. Sub-rule (1) of Rule 9 of Order XIII provides for return of a document produced by a party after the disposal of the suit or appeal or after expiry of time to prefer an appeal or even during the pendency of proceedings provided that a copy of such document is produced and an undertaking is furnished by the party to produce the original in case it is required. But a document which has become void or useless cannot be returned. Sub-rule (2) of Rule 9 of Order XIII requires the party receiving the document to issue receipt of return of document. 11. In Gitabai Vs. Dayaram, AIR 1970 Bombay 160, it was held that Rule 9 of the Code is a rule of caution and when a party is allowed to produce a document which influences a court in deciding a case, it is both fair and necessary that the document continues to remain on record till the case is finally decided. A court of law, therefore, should not return the document without observing the requirements of law. 12. In Prem Lata Vs. A court of law, therefore, should not return the document without observing the requirements of law. 12. In Prem Lata Vs. Shiv Nath, AIR 1997 Jammu & Kashmir 130, it was held that the court must insist for production of certified copy of document before original document is returned. 13. In Girijananda Vs. R., AIR 1921 Calcutta 443, it was held that a person intending to get a document back should make an application. The proceedings relating to return of documents, as specified in the provision referred to supra, appear to be purely ministerial. 14. In Kalidas Vs. Kuverji, AIR 1969 Gujarat 149, it was held that return of a document without following procedure laid down in Rule 9 of Order XII of the Code is a material irregularity in exercise of jurisdiction. 15. There cannot be any doubt or controversy that if the language employed in the provision specified in Order XIII Rule 9 of the Code is carefully scrutinized, the applications filed by the father and the son would not fall within the ambit of Order XIII Rule 9 of the Code. However, the question to be decided is, whether the orders made by the learned Principal Junior Civil Judge, Adoni are to be disturbed or confirmed, in the peculiar fact situation. 16. It is stated that when both the father and the son, on the strength of promissory notes, had instituted the suits, the promissory note of the father was filed in the suit filed by the son and likewise the promissory note of the son was filed in the suit filed by the father. This is just a bonafide mistake. 17. When that being so, this Court is of the considered opinion that the learned Principal Junior Civil Judge, Adoni had exercised the discretion properly by invoking the inherent powers under Section 151 of the Code and made appropriate orders. Even otherwise, this Court is also of the considered opinion that by rectification of such bonafide mistake, the revision petitioner is not going to suffer in any way and no prejudice would be caused to him. Hence, viewed from any angle, these are not fit matters to be interfered with under Article 227 of the Constitution of India. 18. Accordingly, both the C.R.Ps shall stand dismissed, at the stage of admission. There shall be no order as to costs.