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2013 DIGILAW 1177 (MAD)

Manikannan v. Sambandam

2013-03-01

K.RAVICHANDRA BAABU

body2013
JUDGMENT 1. The Plaintiff in a suit for declaration and for permanent injunction is the petitioner before this Court. He is aggrieved against the order passed by the Court below in condoning the delay of filing certain documents by the respondent herein. 2. The claim of the petitioner as the plaintiff in O.S.No.549 of 2007 on the file of the District Munsif Court is that the suit properties are the joint family properties and in pursuant to a partition deed dated 11.6.1979, the plaintiff is in possession and enjoyment of the properties for more than 35 years. The defendants without having any manner of right or title over the suit properties attempted to interfere with the same. Consequently, the plaintiff/petitioner filed the above suit with the relief as stated supra. 3. The first defendant/the respondent herein filed a written statement and contended that the plaintiff borrowed a sum of Rs.1,25,000/-from the first defendant on 7.11.2003 and created a usufructuary mortgage in respect of suit item No.2 in favour of the first defendant. Consequent upon execution of such document, the first defendant was also put in possession. It is further stated that the plaintiff also executed a promissory note under an agreement in favour of the first defendant on the very same day. As the plaintiff expressed his inability to bear the registration expenses, those documents were not registered. The first defendant/ respondent filed the present I.A. under Order 8 Rule 1 C.P.C, nearly after four years seeking for condonation of delay in filing those three documents viz., promissory note, receipt and mortgage deed dated 7.11.2003. 4. The application was resisted by the petitioner herein by stating that the documents sought to be filed by the petitioner are xerox copies and also unregistered one. Therefore, the same cannot be received as evidence. It is also contended by the petitioner that the contention of the first defendant with regard to impounding of the original documents in O.S.No. 129 of 2007 is false and in fact no documents were impounded for collection of stamp duties and no suit is also pending before the Sub-Court, Cuddalore in O.S. No. 129 of 2007. 5. It is also contended by the petitioner that the contention of the first defendant with regard to impounding of the original documents in O.S.No. 129 of 2007 is false and in fact no documents were impounded for collection of stamp duties and no suit is also pending before the Sub-Court, Cuddalore in O.S. No. 129 of 2007. 5. The Court below after considering the rival submissions, allowed the application on the ground that the first defendant is only seeking to file those documents and the petitioner herein as the plaintiff can object to their admissibility at the time of marking of the same in the Court . In support of its conclusion, the Court below relied on the decision of the Apex Court reported in Shalimar Chemical Works Ltd., Surendra Oil & Dal Mills (Refineries) and others (2010 (3) TNLJ 545). Aggrieved against the said order, the present Revision is filed by the plaintiff/ petitioner. 6. Though notice was served on the respondent, he has not chosen to appear before this Court either in person or through counsel. Heard the learned counsel for the petitioner and perused the materials placed before this Court. 7. In a suit for declaration and permanent injunction filed by the petitioner against the respondent and another, a written statement was filed on 5.10.2007 by the respondent herein as the first defendant. From the perusal of the written statement, it is seen that all the three documents which are subject matter in the condone delay petition, were already filed along with the written statement on 5.10.2007 by specifically listing them out as Sl Nos. 1 to 3. It is seen that those documents were filed as notarised copies of the originals. However, a perusal of the application filed by the respondent under Order 8 Rule 1 CPC would show that the respondent is seeking to file those documents with delay and seek permission of the Court to receive the same. If already those documents were filed along with the written statement on 5.10.2007, certainly there is no necessity for seeking for condonation of delay in filing those documents before the court below. Therefore, in effect the first defendant is only seeking permission of the Court to receive those documents as evidence. Admittedly, all those documents are only xerox copies and also unregistered one. 8. Therefore, in effect the first defendant is only seeking permission of the Court to receive those documents as evidence. Admittedly, all those documents are only xerox copies and also unregistered one. 8. The learned counsel for the petitioner would vehemently argue that the copies of the unregistered documents are totally inadmissible in evidence and therefore even for filing the same the respondent cannot be permitted. 9. A perusal of Order 8 Rule 1 and 1A of CPC would show that the defendant has to file written statement within 30 days from the date of service of summons. However, if the defendant fails to file the written statement within the said period of 30 days, he shall be allowed to file the same by the court, on such other date, for reasons to be recorded in writing. Even such extension of time shall not go beyond ninety days from the date of service of summons. Further reading of sub-rule (1) of Rule 1-A shows that the defendant shall enter any such documents in a list on which he bases his defence and deliver those documents and copies thereof to be filed with the written statement. If a document is not produced by the defendant under this Rule, it shall not be received in evidence on his behalf at the hearing of the suit without leave of the court. A combined reading of sub-rule (1) and 1-A of Order 8 of CPC shows that the defendant has to file the documents within the time stipulated under sub-rule (1) of Rule 1-A and if any document is not so produced under sub-rule (1) within the time stipulated, the same cannot be produced and received in evidence without leave of the court. 10. Thus, it is manifestly clear that a document which is sought to be filed along with the written statement or plaint should be a document admissible in evidence. If they are not admissible in evidence, mere filing of the same, would not serve any purpose. Admittedly, in this case all the documents which are either sought to be filed or received as evidence are only xerox copies of originals, apart from the fact that those original documents itself were not registered one. If they are not admissible in evidence, mere filing of the same, would not serve any purpose. Admittedly, in this case all the documents which are either sought to be filed or received as evidence are only xerox copies of originals, apart from the fact that those original documents itself were not registered one. Under such circumstances, in my considered view, the objection raised by the petitioner is certainly valid and when such objection is raised with regard to the admissibility of the documents, the Court below should not have allowed the respondent even to file those documents, when they are not going to serve any purpose, when the petitioner made his objection at the very preliminary stage. 11. The Court below has wrongly understood decision of the Apex Court inShalimar Chemical Works Ltd., Vs. Surendra Oil & Dal Mills (Refineries) and others (2010 (3) TNLJ 545) in support of its conclusion. In fact the penultimate paragraph of the said judgment, if perused, would only show that the above said decision, in fact, goes against the view expressed by the Court below. The Hon'ble Supreme Court at Paragraph 12 of its judgment has observed as follows:- "12. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about that way the trial proceeded. " 12. Thus, from the reading of the above finding of the Apex Court, it is clear that the trial Court should decline to take xerox copies of the documents on record as evidence and should leave the parties to support their case by whatever means they propose, instead of leaving the issue of admissibility of those documents open. " 12. Thus, from the reading of the above finding of the Apex Court, it is clear that the trial Court should decline to take xerox copies of the documents on record as evidence and should leave the parties to support their case by whatever means they propose, instead of leaving the issue of admissibility of those documents open. In effect, from the conclusion of the Hon'ble Supreme Court, it is seen that when a document is sought to be filed as a xerox copy and its admissibility is opposed by the other side, the same need not even be allowed to be filed rather than leaving the question of admissibility of such document open at a later stage, while marking such document. The Court below has totally failed to consider the above observation made by the Hon'ble Supreme Court and thus erroneously allowed the application filed by the respondent. Thus by following the decision of the Apex Court as referred to supra, I find that the order passed by the Court below is totally erroneous and accordingly the Civil Rvision Petition is allowed and the application in I.A.No. 13 of 2011 in O.S.No.549 of 2007 is dismissed. Consequently, the connected M.P. is closed. No costs.