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2010 DIGILAW 5084 (MAD)

Selva Kumar v. Ramasamy

2010-11-19

T.S.SIVAGNANAM

body2010
Judgment :- 1. This Revision has been filed under Article 227 of the Constitution of India against the petition and order dated 12.8.2005 in un-numberred I.A-. Of 2005 in M.C.O.P.No.78 of 2001 on the file of the Chief Judicial Magistrate, Namakkal. 2. The petitioner filed M.C.O.P.No.78 of 2001 under section 166 of the Motor Vehicles Act, claiming a sum of Rs.5 lakhs as compensation for the grievous injury sustained by him in a road accident. The first respondent in the Claim Petition is the owner of the lorry and the second respondent is the Insurance Company. According to the petitioner, he was a second driver in the lorry bearing Registration No.HR 29 B 4929 owned by the first respondent and when the lorry was driven by its Driver K.Palanisamy, on account of his rash and negligent driving, when the lorry was proceeding from Cithpur to Undiyur, the lorry dashed against a tree and as a result of which, the petitioner sustained injuries and he has also suffered permanent disability. On account of loss of earnings, pain and sufferings, he filed a Petition claiming compensation. 3. The respondent Insurance Company resisted the Claim Petition both on merits as well as on the quantum. Thereafter, the petitioner filed an Interlocutory Application under Order 13 Rule 10, section 151 of Code of Civil Procedure read with Rule 74 of the Civil Rules of Practice with a prayer to issue direction and summon the records in S.C.No.790 of 1995 on the file of Cithpur Judicial Magistrate Court, Gujarat State. 4. Thereafter, the petitioner filed an Interlocutory Application under Order 13 Rule 10, section 151 of Code of Civil Procedure read with Rule 74 of the Civil Rules of Practice with a prayer to issue direction and summon the records in S.C.No.790 of 1995 on the file of Cithpur Judicial Magistrate Court, Gujarat State. 4. In the affidavit filed in support of the Petition, the petitioner had stated that on 31.5.1994, the lorry met with an accident and for the injury sustained by him, he has filed a Petition claiming compensation and for the purpose of proving his claim, he filed documents and in respect of the accident, a complaint was given before the Cithpur Police station, in which a case has been registered in S.C.No.790 of 1995 before the Cithpur Judicial Magistrate Court No.II and the trial has been concluded and the Judgement has been passed and he has been able to secure only copy of the Judgment and based on which he would not be able to prove his claim before the Motor Accident Tribunal and therefore, copy of the First Information Report, Charge sheet and other documents should be summoned from the Cithpur Judicial Magistrate Court No.II. Further, it is contended that the petitioner is not able to carry on his work as a Driver on account of the permanent disability suffered by him. The trial Court without even numbering the Application, returned the same with the following endorsement: "This kind of send for petition can be ordered only if the petitioner could not obtain certified copies of Criminal Court documents from the Court concerned. In the instant case, the petitioner can very well apply and get certified copies from Cithpur Judicial Magistrte Court No.2. Hence this petition is returned as unnecessary." Aggrieved by such return, the present Civil Revision Petition has been filed. 5. Though notice has been served on the respondent and his name has been shown in the cause list, non appeared for the respondent. 6. The learned counsel for the petitioner submits that the Court below ought to have numbered the Application and without entertaining the same, ought not to have returned the Application. 5. Though notice has been served on the respondent and his name has been shown in the cause list, non appeared for the respondent. 6. The learned counsel for the petitioner submits that the Court below ought to have numbered the Application and without entertaining the same, ought not to have returned the Application. That the below ought to have seen the scope and ambit of Order 13 Rule 10 of Civil Procedure Code and considered the specific pleading of the petitioner that inspite of his best effort, the certified copies of the relevant document could not be obtained and therefore, having left with no other option, the petitioner approached the Court requesting to summon those documents. 7. In support of his contentions, the learned counsel placed reliance on the following decision: i) AIR 1966 ASSAM 48 [CHIRANJILAL Vs. MAHABIR] ii) AIR 2001 J&K 2 [RIYAZ JAN MAST v. ASIF JAVID] iii) 2001 AIHC 4428 [JAI SINGH Vs. JAGDISH] iv) AIR 2009 SC 2352 [LAKSHMI v. CHINNAMMAL] v) (2006) 1 M.L.J. 379 . [ANAND A. vs. A.PERUMALSAMY] 8. I have considered the submissions made by the learned counsel for the petitioner and perused the materials available on record. 9. In exercise of the power under Order 13 Rule 10(i) of the Civil Procedure Code, the Court may on its own motion and may in its discretion upon the application filed by any of the party to the proceedings send for, either from its own records or from any other Court, the record of any Suit or proceedings and inspect them. In terms of sub-Rule 2 of Rule 10 Order 13 of Code of Civil Procedure, a person making such an Application is required to file an affidavit to show how the record is material to the Suit and the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or such portion thereof of such record is required. 10. The Hon’ble Supreme Court in the case of LAKSHMI v. CHINNAMMAL, reported in AIR 2009 SC 2352 , while examining the scope of Order 13 Rule 10 of CPC, in paragraph No.12 observed as follows: "If brining on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Courts duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed." 11. Therefore the law laid down by the Hon’ble Supreme Court referred supra establishes that ordinarily such request made by the party under Order 13 Rule 10 of CPC should not be refused. The power conferred under Order 13 Rule 10 of CPC is wide enough to call for the records not only from the Civil Court, but also from a Criminal Court as the expression used under Rule 10 of CPC is “from any other Court”. In fact, the High Court of Jammu and Kashmir in AIR 2001 J & K 2 has held that the power under Order 13 Rule 10 of CPC is wide enough to call for records not only from Civil Court or Revenue Court but from such other authority which has the trappings of the Court. 12. Further, it is to be noted that in terms of Sub-Rule 2 of order 13 Rule 10 of CPC, if the petitioner cannot without any unreasonable delay or expense obtain a duly authenticated copy of the records, the Court on being satisfied on such application being made pass an order summoning the document or records. In the impugned return passed by the trial Court, the only reason stated is that the petitioner should produce the certified copy of the same. In fact the case itself is that though he has been able to produce the certified copy of the Judgment of the Criminal Court in Summary Case No. 790 of 1995, but the petitioner has not been able to secure the copy of the First Information Report/Charge Sheet and connected records and therefore sought for summoning the entire records. In fact the Rajasthan High Court in 2001 ACHC 4428 has held that filing of duly authenticated copy is not a sinequo-non for passing an order of summoning of document in respect of sub-rule 2 of Rule 10 Order 13 of CPC. In fact the Rajasthan High Court in 2001 ACHC 4428 has held that filing of duly authenticated copy is not a sinequo-non for passing an order of summoning of document in respect of sub-rule 2 of Rule 10 Order 13 of CPC. Further, legislature itself has provided the contingency in which the authenticated copy can be dispensed with before summoning of the documents and therefore, the Hon’ble Rajasthan High Court held that the Court can certainly permit the party to seek relief for production of documents without filing duly authenticated and certified copy. Hence, this Court is of the view that the stand taken by the trial Court for returning the Application for summoning the records is untenable. As noticed above, the trial Court has not even numbered the Application. 13. In the result, the above Civil Revision Petition is allowed and the trial Court is directed to number the Application filed by the petitioner filed under Order 13 Rule 10 of CPC read with Rule 74 of Civil Rules of Practice and decide the same in terms of the law discussed in the preceding paragraphs. No costs.