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Madras High Court · body

2010 DIGILAW 2257 (MAD)

M. Saraswathy v. Crecey Fernandez

2010-06-08

G.RAJASURIA

body2010
Judgment :- 1. Heard both sides. 2. Compendiously and concisely, the relevant facts, absolutely necessary for the disposal of these two revision petitions would run thus: a. Inveighing the order dated 03.03.2010 passed in E.A.No.28 of 2010 and E.A.No.27 of 2010 respectively in E.A.No.79 of 2009 in E.P.No.395 of 2009 in RCOP No.815 of 2002 on the file of the XV Small Causes Court, Chennai, these civil revision petitions are focussed. b. The first respondent herein filed RCOP as against the second respondent herein for eviction on the ground of wilful default. The Rent Controller ultimately passed the eviction order. E.P.No.395 of 2009 was filed by the first respondent herein as against the second respondent for obtaining delivery. c. At that stage, obstruction was caused by the revision petitioner herein; whereupon, E.A.No.79 of 2009 was filed by the first respondent herein and the court as per law started processing it and started taking evidence also. d. It is an admitted fact on the decree holders side (R1s side) no oral and documentary evidence was adduced. Whereupon on the obstructor’s side, the obstructor examined herself as a witness along with one of her vendors and exhibited documents. e. At that stage, it appears, the obstructor thought fit to file E.A.No.28 of 2010 under Order XVI Rule 1 (3) r/w Section 151 of CPC and E.A.No.27 of 2010 under Order XVI Rule 1 (A) r/w Section 151 of CPC for summoning the decree holder and for production of documents. f. Whereupon counter was filed and the lower court dismissed both the applications. g. Being aggrieved and dissatisfied with the orders of the court below, these two revisions have been filed almost based on one and the same set of grounds of revision ; the gist and kernel of them and the arguments submitted by the learned counsel for the revision petitioner would run thus: (i) The order of the lower court is against law and weight of evidence. (ii) The obstructor is the real owner of the property; whereas the decree holder is having nothing to do with the owner ship of the property. (ii) The obstructor is the real owner of the property; whereas the decree holder is having nothing to do with the owner ship of the property. But deliberately, the decree holder who choose to cite one Jansi Rani as the tenant in R.C.O.P. and obtained a collusive order of eviction and with the help of the said order the decree holder is trying to evict the obstructor who is the real owner of the property, by virtue of the sale deed executed by her vendors. Since the decree holder did not examine herself as one of the witnesses, the petitioner wants to cross examine her and highlight the true facts to the court. Accordingly, he prays for allowing both these revisions. 3. Whereas by way of torpedoing and pulverising the arguments as put forth on the side of the revision petitioner, the learned counsel for the first respondent/decree holder would set forth and put forth his arguments, the tour d horizon of them would run thus: a) The alleged vendors of the obstructor are none but the sons of Jansi Rani, who was found fault with by the High Court in the probate proceedings as she had no right over the property. b) The original owner happened to be the very decree holder herself and she properly filed the RCOP as against Jansi Rani and in such a case, the obstructor who claims to have derived title under Jansi Ranis sons pendente lite, by no stretch of imagination could be taken as a person having valid ground to cause obstruction. c) Trying to summon the petitioner at the instance of the respondent is an extra ordinary measure and it cannot be granted as a matter of course. If at all the obstructor could put forth and satisfy the lower court that non examination of the decree holder would be fatal to the said proceedings, then it is for her to raise that point, which would be faced fittingly and appropriately by the decree holder but the obstructor cannot try to cause harassment to the decree holder by summoning her and cross examining her. Accordingly, he prays for the dismissal of the revision petitions. 4. The point for consideration is as to whether in the facts and circumstances of this case, examination of the decree holder/R1 herein is absolutely necessary at the instance of the obstructor? 5. Accordingly, he prays for the dismissal of the revision petitions. 4. The point for consideration is as to whether in the facts and circumstances of this case, examination of the decree holder/R1 herein is absolutely necessary at the instance of the obstructor? 5. No doubt Order XVI Rule 14 of CPC contemplates courts power to summon even a party to the litigation for being examined or cross-examined. But trite the proposition is that, as a matter of course, simply for the sake of one adversary seeking the appearance of another adversary in the litigative process, the court should not order the same. There should be justification for summoning one party by another party. The settled preposition would be to the effect that each party should rely on their own evidence and the petitioner or plaintiff should stand or fall on their own pleadings. If the petitioner/plaintiff fails to prove their case, then it is open for the respondent/defendant to highlight the same and seek for dismissal. There are certain circumstances, which might warrant an adversary to summon the other adversary in the litigative process for which, the party seeking summons should demonstrate before the court certain transaction or exchange of information emerged between those parties and point out that only by summoning such a party, the fact could be established. Then in that case, the court could naturally order for summoning one adversary at the instance of other adversary in the litigative process. 6. Here the counter filed by the obstructor in the obstruction petition filed by the decree holder, would demonstrate and display that there is no such ground set out therein justifying the summoning of the petitioner. In fact the contention of the obstructor/petitioner is precisely to the effect that there was no connection between the decree holder and the obstructor and in fact the obstructor derived title from the said Jansi Ranis sons by virtue of sale deed executed by them pendente lite. According to the learned counsel for the obstructor/petitioner, Jansi Rani herself even before the initiation of proceedings by the decree holder in this matter executed a settlement deed in favour of her said sons and that Jansi Rani herself at present colluded with the decree holder and allowed the matter to go exparte. According to the learned counsel for the obstructor/petitioner, Jansi Rani herself even before the initiation of proceedings by the decree holder in this matter executed a settlement deed in favour of her said sons and that Jansi Rani herself at present colluded with the decree holder and allowed the matter to go exparte. If that be so, I am at a loss to understand as to how the decree holder should be summoned as a witness to highlight those facts. It is a trite proposition of law that vendors should vouch safe, quite possession as well as peaceful title of the vendee and it is for the vendors of the obstructor to come to the rescue of the obstructor herein. As such, without further elaborating, I would like to point out that the obstructor cannot try to cull out any evidence from the decree holder and it is a well settled proposition that no litigant can try to fish out evidence from the other side in support of his own case. 7. I recollect and call up the maxim Secundum allegata et probata – {According to what is alleged and proved, according to the allegations and proofs.} Any amount of evidence without the backing of the pleadings would not be tenable. 8. In this case, the counter filed by the obstructor in the said E.As.filed by the decree holder for removal of obstruction, there is no valid ground set out for summoning the petitioner. The counter contains the narration of the obstructors own case as to how the obstructor obtained title , which the obstructor has to prove independently. In such a case, I am of the considered view that the order of the lower court warrants no interference. I also make it clear that the lower court while dealing with the main obstruction petition shall deal with the same untrammelled and uninfluenced by any of the observations made by this court in dismissing these two revision petitions. 9. Accordingly, both these revisions are dismissed. Connected miscellaneous petitions are also dismissed. No costs.