Research › Search › Judgment

Andhra High Court · body

2009 DIGILAW 72 (AP)

Shanthi Agarwal v. M. Masthan Ali

2009-02-13

P.S.NARAYANA

body2009
Judgment : CRPMP No. 396 of 2009 is filed to direct the X Additional Junior Civil Judge, City Civil Court, Hyderabad to proceed with the further steps in O.S.No.3415 of 2004 notwithstanding the pendency of this CRP No.3163 of 2008 and pass such other suitable orders. While admitting the present CRP on 01-08-2008, this Court granted interim suspension as prayed for in CRPMP No.4229 of 2008. Though this matter is appearing under the caption "Interlocutory", at the request of the counsel on record, the present CRP itself is being disposed of finally. In view of the same, no further orders need be passed in CRPMP No.396 of 2009 and accordingly the said application is hereby closed. Sri J. Prabhakar, learned counsel representing the petitioner, had taken this court through Order 13 Rule 10 of the Code of Civil Procedure (hereinafter referred to as the "Code" for the purpose of convenience) and would maintain that it is not open to a party to call for a public document, relating to which a certified copy can be obtained. The learned counsel also pointed out that it is well-settled that certified copy of a decree can be well obtained and when that being so, such application calling for decree copy from another court definitely is a mis-conceived remedy. The learned counsel also would maintain that the application had been thought of, only with a view to procrastinate the proceedings and that the learned Judge should have appreciated the same. When it is the case of the petitioner that the original decree copy was mis-placed, there is no point in summoning the same and there is absolutely no proof of the factum of loss of the decree copy. The learned counsel also incidentally pointed out to Sections 65, 74, 76 and 77 of the Indian Evidence Act, 1872 as well. The learned counsel also placed reliance on a decision of the Division Bench of the High Court of Karnataka in "Papanna and others Vs. H. Dodde Gowda and others" AIR 1989 Karnataka 61. Per contra, Sri Rupendra Mahendra, learned counsel representing the respondent, would maintain that the respondent filed an application in I.A.No.181 of 2007 in O.S.No.3415 of 2004 on the file of the X Junior Civil Judge, City Civil Court, Hyderabad to call for decree copy dated 08-11-61 in O.S.No.54 of 57 from the Munsif Magistrate, West and South, L.B.Nagar, Rangareddy District. Per contra, Sri Rupendra Mahendra, learned counsel representing the respondent, would maintain that the respondent filed an application in I.A.No.181 of 2007 in O.S.No.3415 of 2004 on the file of the X Junior Civil Judge, City Civil Court, Hyderabad to call for decree copy dated 08-11-61 in O.S.No.54 of 57 from the Munsif Magistrate, West and South, L.B.Nagar, Rangareddy District. The learned counsel also had taken this Court through the respective stands taken by the parties and also the point, which had been formulated for consideration by the learned Judge, and the findings recorded and the observations made by the learned Judge while allowing the aforesaid application. The learned counsel also would maintain that at any rate, in as much as this CRP had been filed under Article 227 of the Constitution of India, in view of the limitations imposed on this Court while exercising the supervisory jurisdiction under the said provision, this CRP is liable to be dismissed.The learned counsel also would maintain that the original CC of decree in fact had been mis-placed in his office and he had also taken this Court through the affidavit filed in support of the application and also the counter-affidavit filed in this regard before the learned X Additional Junior Civil Judge, City Civil Court, Hyderabad. Heard both the learned counsel. The respondent herein as petitioner filed I.A.181 of 2007 in O.S.No.3415 of 2004 on the file of the X Additional Junior Civil Judge, City Civil Court, Hyderabad to call for decree copy dated 08-11-61 in O.S.No.54 of 57 from the Munsif Magistrate, West and South, L.B. Nagar, Rangareddy District. For the purpose of convenience, the parties hereinafter would be referred to as the petitioner and the respondent as shown in the aforesaid application. The petitioner in I.A.181 of 2007 had stated that Umakanth and Rameshlal, Durga Chemical Industries, Gulab Bhai and Chandrakaran Garg are the absolute legal owners and possessors in respect of the suit property through registered sale deeds. The said persons appointed him as watchman to protect the suit property from land-grabbers and anti-social elements. The suit property has not been declared as an evacuee property. Initially, the Government has filed a case against the original owner of the suit property i.e. Dilwarunissa Begum and the Government lost the case in O.S.No.54 of 1957 on the file of the Munsif Magistrate, West and South, L.B.Nagar, Rangareddi District on 08-11-61. The suit property has not been declared as an evacuee property. Initially, the Government has filed a case against the original owner of the suit property i.e. Dilwarunissa Begum and the Government lost the case in O.S.No.54 of 1957 on the file of the Munsif Magistrate, West and South, L.B.Nagar, Rangareddi District on 08-11-61. The respondent filed false suit in respect of the suit property against him as the suit property decided long back in favour of original owner and the respondent knows well that the present suit is a second round of litigation. The petitioner had also stated that the original decree has mis-placed, as such it is just and necessary to call for decree in O.S.54 of 1957 to adjudicate the dispute. One Mr. Chandrakaran Garg applied for issuance of certified copy of decree in O.S.No.54 of 57 from the Munsif Magistrate, West and South, L.B. Nagar, Rangareddy District through S.R.No.6605 of 2006 on 19-04-2006 and the said decree copy has not been furnished to the said person. The respondent in the said application had denied the averments made in the affidavit filed in support of the application. The respondent also denied that Mr.Umakanth, Rameshlal, Durga Chemical Industries, Gulab Bhai and Chandrakaran Garg are the absolute legal owners and possessors in respect of the suit property and that the petitioner was appointed as watchman by the said persons. He had submitted that the suit in O.S.No.54 of 57 has no nexus to the present suit. Admittedly, neither himself nor the petitioner is a party to the said suit. The suit was not one for declaration of title. He denied that he filed false suit in respect of the suit property against the petitioner and the present suit is second round of litigation. The petitioner has failed to satisfy the requirements under Order 13 Rule 10 of the Code. The learned Judge formulated the following point for consideration: "Whether the petitioner is entitled to the relief against the respondent as prayed for?" The learned Judge recorded the reasons at para Nos.7 and 8 in the order dated 26-11-2007 and ultimately allowed the I.A.No.181 of 2007. Aggrieved by the same, the present CRP had been preferred. The learned Judge formulated the following point for consideration: "Whether the petitioner is entitled to the relief against the respondent as prayed for?" The learned Judge recorded the reasons at para Nos.7 and 8 in the order dated 26-11-2007 and ultimately allowed the I.A.No.181 of 2007. Aggrieved by the same, the present CRP had been preferred. In the light of the submissions made by the counsel on record, the following points arise for consideration in this CRP: 1) Whether the order under challenge in the present CRP is liable to be set aside or to be confirmed in the facts and circumstances of the case? 2) If so, to what relief the parties would be entitled? POINTS 1 & 2: The respective stands taken by the parties already had been referred to above. The application in I.A.181 of 2007 was filed under Order 13 Rule of the Code, to call for decree copy dated 08-11-61 in O.S.No.54 of 57 from the Munsif Magistrate, West and South, L.B. Nagar, Rangareddy District. Order 13 Rule 10 of the Code deals with that, Court may send for papers from its own records or from other Courts, which reads as under: 1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same. 2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly unthenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice. 3) Nothing contained in this rule shall be deemed to enable the Court, to use in evidence any document which under the law of evidence would be inadmissible in the suit." The Division of the High Court of Karnataka in AIR 1989 Karnataka Page 61 at para No.5 observed as follows: "No doubt, O.XIII R.10(1) of the C.P.Code (hereinafter referred to as the "Code") read with Rr.76 and 77 of the Karnataka Civil Rules of Practice (hereinafter referred to as the "Rules of Practice") give wide powers to the Court to send for records from other courts but this power, which is discretionary, is required to be exercised in terms of the provisions contained in Rule 76 of the Rules of Practice and sub-rule(2) of R.10 of O.XIII of the Code. The Court must be satisfied that the applicant cannot without any reasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires or that the production of the original is necessary for the purpose of justice. Rule 76 of the Rules of Practice also specifically in mandatory terms provides that"............. 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 certified copies thereof and the original shall not be sent for" (Emphasis supplied). Thus, it is clear that the court must be satisfied with reference to a particular document or record that production of the original is necessary for the purpose of justice or the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or such portion thereof as he requires. The Court is not bound to send for the records from the other court and it should not normally call for the other court records unless it is satisfied that the other court record is necessary. It should only call for such records as are necessary and specially mentioned by the applicant." It is not in serious controversy between the parties that a certified copy of decree definitely can be obtained. It is stated that the respondent in the present CRP, the petitioner in I.A.181 of 2007 aforesaid, is a non-party to O.S.No.54 of 57. It should only call for such records as are necessary and specially mentioned by the applicant." It is not in serious controversy between the parties that a certified copy of decree definitely can be obtained. It is stated that the respondent in the present CRP, the petitioner in I.A.181 of 2007 aforesaid, is a non-party to O.S.No.54 of 57. It is needless to say that even a non-party to the proceedings can definitely obtain a certified copy of decree by making appropriate application. When that being so, the said application filed under Order 13 Rule 10 of the Code, in the considered opinion of this Court, is a misconceived remedy. Hence, the impugned order dated 26-11-2007 passed in I.A.181 of 2007 in O.S.No.3415 of 2004 on the file of the X Junior Civil Judge, City Civil Court, Hyderabad, is hereby set aside. Accordingly, this Civil Revision Petition is allowed. No order as to costs.