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2011 DIGILAW 3465 (MAD)

P. S. Veerappa v. Palaniammal

2011-07-28

M.VENUGOPAL

body2011
JUDGMENT :- 1. The Civil Revision Petitioner/Defendant has filed the instant civil revision petition as against the order dated 28.10.2009 in I.A.No.488 of 2009 in O.S.No.3198 of 2004 passed by the Learned District Munsif cum Judicial Magistrate, Paramathi. 2. The trial court while passing the order in I.A.No.488 of 2009, dated 28.10.2009 has among other things observed that the Revision Petitioner has filed the I.A.No.488 of 2009 not in a proper fashion and moreover in the affidavit in I.A., the Revision Petitioner/Defendant has prayed for summoning the Will dated 8.5.1998 bearing document No.12 entered in Book No.3, Volume-51, Page Nos.47 to 51 from the Sub Registrar Office, Paramathi and that he has not spelt out as to whether the settlement deed dated 27.5.1968 is in whose possession and who has produced the same before the court, etc. Also, the trial court has observed that the Revision Petitioner has not produced the 27.5.1968 settlement deed and as such the plea that the same has to be compared with that of the Will dated 8.5.1998 cannot be accepted. Further, the petitioner has not filed any application for appointment of an Advocate Commissioner and he has not informed his readiness or willingness to bear the expenses to be incurred thereto and resultantly, dismissed the application without costs. 3. Assailing the said order of dismissal of the trial court dated 28.10.2009 made in I.A.No.488 of 2009 in O.S.No.3198 of 2004 on the file of the trial court, the Learned Counsel for the Revision Petitioner urges before this court that the order of the trial court in I.A.No.488 of 2009 suffers from material irregularities and further the trial court has failed to exercise its jurisdiction vested in Law. 4. Advancing his arguments, it is the contention of the Learned Counsel for the Revision Petitioner that filing of an application for sending the document to an expert opinion will arise only at the time of final stage of the trial of the case by means of projecting an application thereto and in the instant case, the stage has not been set for adopting such a course. 5. Lastly, the submission of the Learned Counsel for the Revision Petitioner is that the stage of sending the document to an Expert has not arisen, because, only after the document is marked as an exhibit, consequential application of such nature can be entertained. 5. Lastly, the submission of the Learned Counsel for the Revision Petitioner is that the stage of sending the document to an Expert has not arisen, because, only after the document is marked as an exhibit, consequential application of such nature can be entertained. Apart from the general denial of the plaint allegations, the Revision Petitioner/Defendant has admitted that his father has executed a settlement deed dated 27.5.1968 in favour of his mother. 6. In short, the Learned Counsel for the Revision Petitioner contends that the trial court while dismissing the I.A.No.488 of 2009, dated 28.10.2009 has not taken into account the material facts and the legal position into consideration which has resulted in an erroneous order being passed against the Revision Petitioner/Defendant. 7. Admittedly, the Respondents/Plaintiffs have filed the present suit in O.S.No.3198 of 2004 on the file of Learned District Munsif cum Judicial Magistrate, Paramathi praying for the relief of permanent injunction restraining the Revision Petitioner/defendant or his men from any way interfering with the plaintiff's enjoyment of the suit property, etc. 8. The Revision Petitioner/Defendant has filed a detailed written statement contending that the matter is in the stage of part heard and P.W.1 has been examined in cross examination in part. At that point of time, the Revision Petitioner/Defendant has projected the present I.A.No.488 of 2009 to send for documents as per Rule 75 of the Civil Rules of Practice. 9. A perusal of affidavit in I.A.No.488 of 2009 filed by the Revision Petitioner/defendant indicates that the Revision Petitioner/defendant has made an averment that the respondents/plaintiffs mentioned in the plaint that Chellappa Gounder has written a Will in their favour on 8.5.1998 by means of a document and the same has been denied by him by stating that the signature in the said Will and the finger print are not that of Chellappa Gounder through his written statement. Therefore, he has summoned Book No.3, Volume-51, Page Nos.47 to 51. The thumb impression of Chellappa Gounder, which has been registered in the said document in the Sub Registrar Office, Paramathi and also to produce the said office document register before the court. Obviously, the Revision Petitioner has projected the I.A.No.488 of 2009 by seeking the aid of Rule 75 of the Civil Rules of Practice. 10. At this stage, this court aptly cites Rule 75 of the Civil Rules of Practice which enjoins as follows:- "75. Obviously, the Revision Petitioner has projected the I.A.No.488 of 2009 by seeking the aid of Rule 75 of the Civil Rules of Practice. 10. At this stage, this court aptly cites Rule 75 of the Civil Rules of Practice which enjoins as follows:- "75. Production of records in the custody of public officer other than a court.-(1) A summons for the production of records in the custody of a public officer other than a court shall be in Form No.23 and shall be addressed to the head of he department concerned and in the case of summons to a District Registrar or a Sub-Registrar of Assurances, it shall be addressed to the Registrar or Sub-Registrar in whose office or sub-office, as the case may be the required records are kept. A summons for the production of revenue papers kept in any office in a district shall in all cases be directed to the Collector of the district; Provided that where the summons is for the production of village accounts, including field measurement books, such summons shall be addressed to the Tahsildar or to the deputy Tahsildar in independent charge as the case may be. (2) Every application for such summons shall be made by a verified petition setting out (i) the document of documents the production of which is required, (ii) the relevancy of the document or documents; and (iii) in cases where the production of a certified copy would answer the purpose, whether application was made to the proper officer for a certified copy or copies and the result of such application. (3) No court shall issue such a summons unless it considers the production of the original necessary or is satisfied that the application for a certified copy has been duly made and has not been granted. The court shall in every case record its reasons in writing and shall require the applicant to deposit in court before the summons is issued, to abide the order of the court, such sum as it may consider necessary, to meet the estimated cost of making a copy of the document when produced. (4) On production of the documents in obedience to the summons the court unless it thinks it necessary to retain the original shall direct a copy to be made at the expense of the applicant, and shall with all convenient speed return the original retaining the copy. (4) On production of the documents in obedience to the summons the court unless it thinks it necessary to retain the original shall direct a copy to be made at the expense of the applicant, and shall with all convenient speed return the original retaining the copy. (5) Unless the court requires the production of the original every such summons to a pubic office shall state that he is at liberty to produce instead of the original a copy certified in the manner prescribed by section 76 of the Indian Evidence Act 1872. (6)Nothing in the above rules shall prevent a court of its own motion from issuing a summons for the production of public records or other documents in the custody of a public officer if it thinks it necessary for the ends of justice to do so. The court shall in every case record its reasons in writing." 11. It is to be noted that only in the substantial suit the genuineness of the Will or forgery of the Will dated 8.5.1998 can be gone into and not in a suit for permanent Injunction. In a suit for permanent Injunction filed by the Respondent/Plaintiff, the concerned party is required to prove his possession independent of the title. 12. On going through the order passed by the trial court in I.A.No.488 of 2009, dated 28.10.2009, this court is of the considered view that the trial court while dismissing theI.A.No.488 of 2009 has not touched upon the aspect as to whether in a suit for bare Injunction summoning of the settlement deed dated 27.5.1968 Register Book No.3, Volume N-51 page 47 to 51 from the Sub Registrar Office, Paramathi is very much required for a just and equitable decision of the case. Though it has assigned different reasons like the Revision Petitioner/Petitioner has not taken steps to file an application praying for an appointment of Advocate Commissioner, to send the Will dated 8.5.1998 for examination by the Expert and further he has not informed that he is ready to meet the expenses to be incurred in dismissing the I.A., this court is not in agreement of the same. It is not out of place for this court to make a significant mention that as per Rule 75(3) of Civil Rules of Practice, it is the duty of the trial court to record reasons in writing every case as to why it is summoning the concerned register which has been sought for in the Application No.488 of 2009. The recording of just and equitable reasons either in allowing or dismissing the application are very much essential and necessary by the trial court. 13. The trial court in its order dated 28.10.2009 in I.A.No.488 of 2009 has not rendered its finding as to whether the summoning of the Register Book No.3, Volume-51, Page Nos.47 to 51 containing the Will dated 8.5.1998 is very much required for arriving at a just decision of the present suit filed for permanent Injunction which is at the part heard stage before the trial court. Added further, the trial court has not dealt with the issue/point of maintainability of I.A.No.488 of 2009. This court, without going into the merits of the matter and also not expressing any opinion sets aside the order passed by the trial court in I.A.No.488 of 2009 on the basis that the trial court has dismissed the I.A.No.488 of 2009 by ascribing incorrect reasons which will not stand a moment's scrutiny in the eye of law. 14. In the result, the Civil Revision Petition is allowed. The order passed by the learned District Munsif cum Judicial Magistrate at Paramathi in I.A.No.488 of 2009 in O.S.No.3198 of 2004 is set aside for the reasons assigned in the civil revision petition. The trial court is directed to restore I.A.No.488 of 2009 to its file and after restoring the same to its file and after restoration, it is directed to dispose of I.A.No.488 of 2009 afresh on merits in the manner known to law after providing due opportunities to the respective parties, within a period of three weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No costs.