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2012 DIGILAW 3111 (MAD)

S. Muniskarthikeyan v. Ashokkumar

2012-07-18

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 11.08.2011 passed in E.A.SR.Nos.1902, 1903, 1904, 1905 and 1883 of 2011 in E.A.Nos.22, 56, 24, 25 and 22 of 2009 in E.P.Nos.40, 42, 41, 43 and 44 of 2008 in O.S.Nos.175, 209, 198, 210 and 226 of 1988 respectively, by the learned Principal District Munsif, Alandur, Chennai these civil revision petitions are focussed. 2. Heard the learned counsel for the revision petitioner. 3. A thumbnail sketch of the relevant facts absolutely necessary for the disposal of these revisions, in a few broad strokes could be encapsulated thus: The revision petitioner herein is the obstructor who obstructed the delivery of possession; whereupon the decree holder filed several E.As. for removal of the obstruction under Order XXI Rule 97 read with Section 151 of CPC. During the pendency of those E.As, for removal of obstruction, the obstructor presented E.As. for summoning the decree holder invoking Order XVI Rule 21 of CPC. The Court returned those applications with the following endorsement: "The applicant is an obstructor. He cannot be party to the main proceedings. The claim of the obstructor must be proved by producing his own evidence more particularly the documentary evidence. The obstructor cannot compel the decree holder to depose evidence as his evidence. The authority cited by the petitioner obstructor is not applicable to the present facts and circumstances of the case. Hence the petition cannot be taken on file. Hence the petition is rejected." 4. Being aggrieved by and dissatisfied with the same, the obstructor filed these revisions on various grounds. 5. The learned counsel for the revision petitioner would echo the cri de coeur of his client to the effect that without even numbering the applications they were returned, which was against the principles of natural justice. There were other proceedings and the obstructors as stated by their advocates are the decree holders as in one other suit. Suppressing those material facts, the present decree holder in this matter did choose to file application for removal of obstruction caused by the revision petitioner herein. Accordingly, the learned counsel for the revision petitioner would pray for issuing direction to entertain those applications. 6. A plain reading of the records would display and demonstrate that the E.As for removal of obstructions are pending and it appears the revision petitioners examined themselves also as witnesses. Accordingly, the learned counsel for the revision petitioner would pray for issuing direction to entertain those applications. 6. A plain reading of the records would display and demonstrate that the E.As for removal of obstructions are pending and it appears the revision petitioners examined themselves also as witnesses. While so, they wanted the decree holder to be examined as he had not examined himself so far, even though, he made a faint attempt to examine himself, but subsequently he dropped the idea of examining himself. 7. I would like to point out that it is the duty of the obstructors to explain before the Court the reasons for causing obstruction. No doubt as a petitioner, primarily it is the duty of the decree holder to show that the obstructors are causing obstruction frivolously and baselessly; whereupon the obstructors are enjoined to show that independently they are having right in respect of the property. In such a case, I could see no reason on the part of the obstructors in filing such applications and compel the decree holder to examine himself before the Court. In the affidavit accompanying the applications concerned, I could see that there is a statement to the effect that in order to minimise the production of the documents, the obstructors wanted the decree holder to be examined. There is no knowing of the fact as to why the obstructors should try to minimise anything. If at all they are having any documents to prove their independent right over the property, it is for them to produce it. If the Court finds that non examination of the decree holder in the removal of obstruction petition, was material, then adverse inference would be drawn in such circumstances. Hence it is not the duty of the obstructors to file such petitions to summon the decree holder. Law envisages the following maxims: (1) Affirmantis est probare : The person who affirms must prove. (2) Affirmanti, non neganti, incumbit probatio: The proof is incumbent on the one who affirms, not on the one who denies. 8. As such in view of the same, I could see no merit in these revision petitions; however, I make it clear that the Executing Court which is seized of the E.As. relating to removal of obstruction gives ample additional opportunity also to the obstructors to produce both oral and documentary evidence. 8. As such in view of the same, I could see no merit in these revision petitions; however, I make it clear that the Executing Court which is seized of the E.As. relating to removal of obstruction gives ample additional opportunity also to the obstructors to produce both oral and documentary evidence. In the result, these civil revision petitions stand dismissed. No costs.