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2011 DIGILAW 2095 (MAD)

Kuppusamy v. Selvathandavam @ Thandava Mudaliar

2011-04-11

K.MOHAN RAM

body2011
Judgment :- 1. The Plaintiff in O.S.No.37 of 2005 on the file of the Principal District Munsif Court, Cuddalore is the Petitioner in the above Civil Revision Petition. 2. The Petitioner had filed I.A.No.1858 of 2009 under Order 7, Rule 14(3) of C.P.C. to condone the delay in filing the documents. It is the case of the Petitioner that he has filed a Suit for declaration and permanent injunction and the Suit is posted for Plaintiff’s evidence. A Witness summon was sent to one Ramalingam S/o Sakkarapani. But the said summon was returned as the witness was not residing in that address. The said Ramalingam was examined as P.W.2 in O.S.No.160 of 1999 on the file of the Additional District Munsif Court, Cuddalore. So, it is necessary to make the deposition of Ramalingam in that Suit and therefore, the delay in filing the document should be excused. 3. The said Petition was contested by the Respondents contending that it was the 4th Application for reception of document and the Petition has been filed at the belated stage and the said Ramalingam is no way connected to the present Suit and therefore, the deposition of Ramalingam recorded in O.S.No.160 of 1999 has no relevance at all. 4. The Court below, after considering the rival contentions rejected the Application. Being aggrieved by that, the Petitioner has filed the above Civil Revision Petition. 5. Heard both. 6. The learned Counsel for the Petitioner submitted that Ramalingam was the father of Respondents 3 to 6 and that he had admitted the Petitioner’s right in the suit property in a prior Suit and therefore, his deposition is relevant in the Suit. The learned Counsel further submitted that the prior Suit was ended in favour of the Petitioner. 7. In support of the above contentions, the learned Counsel for the Petitioner has placed reliance on the decision of the Apex Court in the case of TirumalaTirupathi Devasthanams v. K.M. Krishnaiah, 1998 (2) SCC 331. In the said decision, in paragraphs 9 and 10 the Apex Court has laid down as follows: “9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In the said decision, in paragraphs 9 and 10 the Apex Court has laid down as follows: “9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishnarao Kango v. Narayan Devji Kango speaking on behalf of a Bench of Three learned Judges of this Court, Venkatraman Ayyar, J. held that a judgment not inter partes is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K. Mukherjea, J. (as he then was)speaking on behalf of a bench of Four learned Judges in Bital Das v. Sant Ram held that a previous judgment not inter partes was admissible in evidence under Section 13 of the Evidence Act as a “transaction” in which a right to property was “asserted” and “recognized”. In fact, much earlier, Lord Lindley held in the Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani, ILR at p. 198 that a previous judgment, not inter pares was admissible in evidence under Section 13 to show who are parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Cinomni v. Borjo Mohini and Ram Ranjam Chakerbati v. Ram Narain Singh by Sir John Woodroffe in his Commentary on the Evidence Act (1931, p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sundar Mal. 10. For the aforesaid reasons, we reject the contention of the learned Counsel for the Respondent-Plaintiff and hold that the TTD could rely on the judgment in O.S.No.51 of 1937 as evidence to prove its title in regard to the suit property, even though the present Plaintiff was not a party to that Suit. Point 1 is held accordingly against the Respondent”. 8. The learned Counsel also relied upon the decision in the case ThimmappaRai v. Ramanna Rai and others, 2007 (5) CTC 287. In the said decision, in paragraph 25, the Apex Court has laid down as follows: “25. An admission made by a party to the Suit in an earlier proceedings is admissible as against him. 8. The learned Counsel also relied upon the decision in the case ThimmappaRai v. Ramanna Rai and others, 2007 (5) CTC 287. In the said decision, in paragraph 25, the Apex Court has laid down as follows: “25. An admission made by a party to the Suit in an earlier proceedings is admissible as against him. Such an admission being a relevant fact, the Courts below in our opinion were entitled to take notice thereof for arriving at a decision relying on or on the basis thereof together with other materials brought on records by the parties. Once a party to the Suit makes an admission, the same can be taken in aid, for determination of the issue having regard to the provisions of Section 58 of the Indian Evidence Act.” 9. On the aforesaid submissions, the learned Counsel appearing for Respondents 3 to 7 was heard. 10. I have considered the said submissions. 11. The case of the Petitioner is that the summon was taken in the Suit to one Ramalingam S/o Sakkarapani to give evidence in O.S.No.27 of 2005. But the summon was returned with endorsement that he is not residing there. In such circumstances, the Petitioner has filed a Petition to condone the delay in adducing additional evidence viz., the deposition of said Ramalingam who was examined as P.W.2 in O.S.No.160 of 1999. It has not been stated in the Affidavit as to who are the parties in O.S.No.160 of 1999 and how such deposition is relevant for deciding the issue in the present Suit. Even if the deposition allowed to be produced, it can be marked only through Ramalingam, as he had deposed before the Court. It can’t be marked through any other witness and therefore, the Court is right in dismissing the Petition. 12. Even if the deposition allowed to be produced, it can be marked only through Ramalingam, as he had deposed before the Court. It can’t be marked through any other witness and therefore, the Court is right in dismissing the Petition. 12. In the decision reported in TirumalaTirupathi Devasthanams v. K.M. Krishnaiah, 1998 (2) SCC 331, it has been held that judgment not inter partes is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute and the judgment rendered in earlier Suit declaring title of the present Appellant in a land is admissible and could be relied upon by Appellant in the subsequent Suit filed by the Respondent for grant of permanent injunction against the Appellant in respect of the same land, even though Respondent was a not a party to the earlier Suit. The said decision relates to a judgment rendered in an earlier Suit. But the said decision has not laid down that the deposition of a witness to an earlier Suit can be marked as additional evidence in the subsequent Suit. Therefore, the said decision is not applicable to the facts of this case. 13. In the decision reported in ThimmappaRai v. Ramanna Rai and others, 2007 (5) CTC 287, the Apex Court has considered the effect of admission made by one party in an earlier proceedings in another Suit against him. It is not the case of the Petitioner that the party to the present Suit had made any admission in an earlier proceedings and that is sought to be marked. What is sought to be marked is the deposition of Ramalingam, who is admittedly not a party to the Suit and therefore, the said decision is also not applicable to the facts of the case. 14. For the aforesaid reasons, this Court does not find any reason to interfere with the order passed by the Court below. Hence, the Civil Revision Petition fails and the same is dismissed. However, there will be no order as to costs. Consequently, connected Miscellaneous Petition is also dismissed.