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Madras High Court · body

2009 DIGILAW 303 (MAD)

S. Kuppusamy v. Venkatesan & Another

2009-01-23

G.RAJASURIA

body2009
Judgment :- Animadverting upon the order dated 05.08.2002 passed by the learned District Munsif, Chengalpattu in I.A.No.350 of 2008 in O.S.No.89 of 2002, this civil revision petition is focussed. 2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents. 3. Concisely and compendiously, the relevant facts, which are absolutely necessary and germane for the disposal of this civil revision petition would run thus: The revision petitioner/plaintiff herein filed the suit in O.S.No.89 of 2002 seeking mandatory injunction against the defendants directing them to remove the unauthorized encroachment on the suit property; whereupon the Court after hearing both sides, dismissed the petition. Being aggrieved by and dissatisfied with the said order, this revision is focussed on various grounds. 4. The learned counsel for the revision petitioner, placing reliance on the grounds of revision, would develop his argument to the effect that the plaintiff for the purpose of proving his case that there is encroachment made by the defendants, wanted the report prepared by the Survey Department after measuring the properties of both during the year 2000. However, the Court simply rejected it erroneously. 5. Whereas the learned counsel appearing for the respondents/defendants would submit that the plaintiff cannot fish out evidence by filing petition as the one, which he filed before the lower Court; the lower Court correctly and appropriately placing reliance on Rule 75 of the Civil Rules of Practice dismissed the petition and in fact, there is no such report also available with the official and the attempt on the part of the plaintiff is only to try to fish out evidence. 6. Perused the records. A bare perusal of the order of the lower Court would indicate that the lower court misunderstood the actual scope of Rule 75 of the Civil Rules of Practice. Hence, it is just and necessary to extract here under Rule 75 of the Civil Rules of Practice. "75. Production of records in the custody of the Court:- 1. An application for the production of records in the custody of a Court shall specify the particular documents required to be produced. Unless it is made to appear to the Court that the production of the original document is necessary, the party shall be required to obtain and file copies thereof and the original shall not be sent for. An application for the production of records in the custody of a Court shall specify the particular documents required to be produced. Unless it is made to appear to the Court that the production of the original document is necessary, the party shall be required to obtain and file copies thereof and the original shall not be sent for. If the Court dispenses with the affidavit mentioned in Order XIII, Rule 10(2) of the Code of Civil Procedure, it shall record in writing the reason for so doing. 2. When a Court finds it necessary to require the production of the records of another Court, it shall address a Letter of Request as in Form No.22 to the presiding Judge of that Court. 3. Where the document to be sent for by Court either from its own records or from those of another Court under Order XIII, Rule 10 is an account book, or other document, not being a record (e.g., judgment, decree, written statement, etc.), which has to be in the custody of a Court and belongs to a person other than a party at whose instance it is sent for, the Court may require the party to deposit in Court before the Letter of Request is issued such sum as it may consider necessary to meet the estimated cost of making a copy of the document when produced. 4. When the Letter of Request is to be issued by the Court itself acting of its own motion it shall be open to the Court to call upon either party to make the deposit as aforesaid. 5. On the production of the document in compliance with the Letter of Request, the Court shall cause a notice to be affixed to the notice board that the document has been received and that the parties may apply to the Court for inspection of the same. The Court shall not grant inspection to either party, unless it is satisfied that the application is made with the consent of the person to whom the document belongs. The Court shall not grant inspection to either party, unless it is satisfied that the application is made with the consent of the person to whom the document belongs. After the document has been admitted in evidence, the Court shall, unless it considers it necessary to retain the original, direct the parties to specify the portion or portions thereof on which they respectively rely, and require a copy to be made of the same at the expense of the party requiring such portion, and shall thereafter, with all convenient speed, return the original to the Court from which it was received retaining the copies as part of the record." The lower Court in fact understood to the effect that before filing the I.A.No.350 of 2008, the plaintiff ought to have approached the authority and after his failure to obtain such certified copy should have invoked Rule 75 of the Civil Rules of Practice. In the facts and circumstances of this case, it is obvious and axiomatic that the document, which the plaintiff seeks for being summoned is only the report and it is not a document like patta, chitta or Adangal relating to which, certified copies could be issued by the authorities and in such a case, the lower Court need not have pondered over those facts, which it dealt with in the order. 7. It is the specific contention of the revision petitioner in the affidavit that the Survey Department of its own accord made a survey and prepared a report and in such a case, the plaintiff would not be able to get such a certified copy of that report from the Department. Visualizing all these facts, the lower Court could have allowed the application. Hence, the order of the lower Court is set aside and the lower court is directed to issue summons to the authority concerned to produce the document as prayed for. 8. With the above observation, this civil revision petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed. 9. Learned counsel for the defendants/respondents would submit that the suit is of the year 2002 and still pending. Hence, I would like to direct the lower Court to dispose of the matter within three months from the date of receipt of a copy of this order and both sides shall co-operate with the lower Court for early disposal.