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2014 DIGILAW 2770 (MAD)

Udhayakumar @ Kumar v. G. Kishore Kumar

2014-08-20

R.MALA

body2014
Judgment Civil Revision petition is filed against the fair and decreetal order dated 06.09.2013 in I.A.No.845 of 2013 in O.S.No.287 of 2009 on the file of the District Munsif Court, Madurantakkkam, Kanchipuram District. 2. The revision petitioner herein as a plaintiff filed a suit for declaration that the sale deed dated 17.10.2008 in favour of second defendant as null and void and also injunction against third defendant restraining him in any way granting patta in favour of second defendant to the suit properties and restraining second defendant from alienating or encumbering the suit properties to third parties and for other reliefs. The first defendant filed a written statement and contested the same. When the case was posted for P.W.1's oral evidence, the plaintiff filed an application in I.A.No.845 of 2013 under Order VII Rule 14 of C.P.C. for reception of six documents stating that those documents were not filed at the time of filing suit. The trial Court, after hearing both sides, received the document Nos.4 to 6, but disallowed the application in respect of document Nos.1 to 3, against which, the present revision petition is preferred by the revision petitioner/plaintiff. 3. Learned counsel for the revision petitioner submitted that he has not pressed the document No.3, which is a licence of Fire Works and he wants to produce document Nos.1 and 2, which were issued by the first defendant stating that the plaintiff has borrowed money from the first defendant, for which, the plaintiff had executed power of attorney in favour of the first defendant as security and on that basis only, the first defendant sold the property to the second defendant vide sale deed dated 17.10.2008. It is further submitted that the loan has been discharged by the plaintiff even in the year 2006 and to prove the same, document Nos.1 and 2 are necessary. But the trial Court allowed the application for receiving document Nos.4 to 6 filed along with the petition for condonation of delay. It is further submitted that the trial Court need not go into the facts of the case whether the documents are admissible evidence or not, but the trial Court while rejecting document Nos.1 and 2 held that those documents are not admissible in evidence, which is unsustainable. It is further submitted that the trial Court need not go into the facts of the case whether the documents are admissible evidence or not, but the trial Court while rejecting document Nos.1 and 2 held that those documents are not admissible in evidence, which is unsustainable. For the reason, he relied upon the decision of this Court reported in (i) 2011 (2) CTC 258 (N.Subhash Chand Jain v. Uniply Industries Limited, rep. by its Managing Director, B.L. Bengani, No.168, Syndenhams Road, Chennai-600 003 and (ii) 2011 (3) CTC 302 (Sundaram Dynacast Pvt. Ltd., having its office at M.T.H.Road, Padi, Chennai-600 050, represented by its Vice President (Operations) v. Raas Controls, having Factory at No.222, Okhla Industrial Estate, Phase III, New Delhi-110 020, represented by its partner Anju Khanna and others) and prayed for allowing this revision petition. 4. Resisting the same, learned counsel for the respondents would submit that the document Nos.1 and 2 did not contain any names and they contain only numbers and document No.1 has been struck off, so the trial Court rightly rejected those documents. Further, the learned counsel would take me through Order 13 Rule 3 of C.P.C., in which, it was held that at any stage of the suit, the Court can reject the document if it is irrelevant or inadmissible. Hence, he prayed for dismissal of the revision petition. To substantiate his arguments, he relied upon the decision of this Court reported in 2003 (3) MLJ 45 (Balakrishnan and others v. Chandrasekharan). 5. Considered the rival submissions made on both sides and perused the typed set of papers. 6. The revision petitioner as a plaintiff filed a suit for the following reliefs: a) to declare the sale deed dated 17.10.2008 in favour of second defendant, which is registered as Doc.No.4429 of 2008 on the file of the 4th defendant Sub-Registrar, Cheyyur is null and void; b) for permanent injunction against the third defendant restraining him his men in any way granting patta infavour of second defendant to the suit properties; c) for permanent injunction against the second defendant restraining him in way alienating or encumbering the suit properties to third parties and registering the same with fourth defendant; d) for other reliefs; 7. The plaintiff filed the suit stating that the property belongs to the plaintiff and he borrowed some money for his business from the first defendant, for which, he executed the power of attorney in favour of the first defendant and the loan amount has been discharged by the plaintiff in the year 2006 itself. Thereafter, the first defendant executed the sale deed in favour of second defendant on 17.10.2008. According to the learned counsel for the petitioner, to prove the borrowal and discharge of the loan amount from the first defendant, document Nos.1 and 2 are necessary, which contain writings of the first defendant. 8. Now it is appropriate to extract Order 13 Rule 3 of C.P.C., which reads as follows: “3. Rejection of irrelevant or inadmissible documents. The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.” In the above extract, it was specifically mentioned that at any stage, the Court can reject the document. 9. Before going to the merits of the case, it is appropriate to consider the following decision relied upon by the learned counsel for the petitioner: (i) In 2011 (2) CTC 258 (N.Subhash Chand Jain v. Uniply Industries Limited, rep. by its Managing Director, B.L.Bengani, No.168, Syndenhams Road, Chennai-600 003), wherein it was held that the stand of the trial Court in refusing to receive the documents filed by the defendant at the threshold is not sustainable. Para-3 is extracted hereunder: 3. According to me, the stand of the learned Judge in refusing to receive the documents filed by the defendant at the threshold is sustainable. As rightly pointed out by the learned Counsel appearing for the Revision Petitioner that this Court has held in judgment reported in the matter of Muthusamy v. K.Ganesan and another, 2006(3) LW 973 following the judgment of Hon'ble Supreme Court rendered in Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700 and Bipin Shantilal Panchal v. State of Gujarat, 2001 (3) SCC 1 , that the Trial Court cannot refuse to accept the document when filed by the parties and when the documents are sought to be marked as evidence, the parties are at liberty to raise objection in accordance with law and the Court can consider the same at that stage. It is further held that in the matter of Gurusamy v. Santhanam, 2005 (5) CTC 102 : 2006 (1) LW 477 , this Court has deprecated the practice of refusing to receive the document filed by the parties at the first instance. Considering the above judgment the order of the Lower Court in refusing to entertain the document Nos.2 to 8 filed by the Defendant is not in accordance with law and it is set aside and the Revision Petition is allowed. (ii) In 2011 (3) CTC 302 (Sundaram Dynacast Pvt. Ltd., having its office at M.T.H.Road, Padi, Chennai-600 050, represented by its Vice President (Operations) v. Raas Controls, having Factory at No.222, Okhla Industrial Estate, Phase III, New Delhi-110 020, represented by its partner Anju Khanna and others), in para-6, it was held as follows: “6. The suit was originally filed by one M/s. Sundaram Dynacast Pvt. Ltd., which was represented by its Vice-President (Operations). In the affidavits in support of the applications to recall PW1 and also to condone the delay in filing the document, it is stated that the company has authorized the said Vice-President (Operations) by its resolution dated 27.09.2001 to institute legal proceedings on behalf of the company, but however the same was omitted to be filed by mistake and inadvertence. Though, the said applications were taken out belatedly, to avoid multiplicity of proceedings, the petitioner could be permitted to file the said resolution. By merely permitting the petitioner to produce that resolution, it will not curtail the right of the respondents to contend that no such resolution was passed, but it is brought in only to throw the defense raised by the respondents. That apart, by merely receiving the said document, it does not mean that the respondents have no liberty to question about the admissibility of the document when it is sought to be marked. The admissibility of the document can be questioned on behalf of the respondents when it is sought to be marked through PW1. While so, even at the inception stage namely, at the time of receiving the document, the admissibility or veracity of the document cannot be gone into.” But the above decision is not applicable to the facts of the present case. In the above decision, it was held that resolution not filed by mistake and inadvertence. Even though the document has been mentioned, it was not filed. In the above decision, it was held that resolution not filed by mistake and inadvertence. Even though the document has been mentioned, it was not filed. So this Court has held that admissibility or veracity of the document cannot be looked into at the time of condonation of delay. 10. Learned counsel for the respondents relied upon the decision of this Court reported in 2003 (3) MLJ 45 (Balakrishnan and others v. Chandrasekharan), wherein it was held that irrelevant or inadmissible document can be rejected by the Court in threshold at the time of condonation of delay. Para-11 is extracted hereunder: “11. The observations made by the Supreme Court in 2001 (3) S.C.C. 1 (Bipin Shantilal Panchal v. State of Gujarat) would relate to speedy disposal of the criminal cases whenever an objection is raised regarding the admissibility of any material or document. But those observations would not apply to the present facts of the case, in view of the prohibition contained in the Indian Registration Act and Indian Stamp Act.” But the above decision is not applicable to the facts of the present case. In the above decision, it was held that unregistered and unstamped documents have been filed. In the case on hand, the documents Nos. 1 and 2 are viz., (1) paper in which 1st respondent calculated the principle and accrued interest for the loan of Rs.40,000/- (ii) Hand note book through which 2 to 5 the 1st respondent received interest on various dates from the petitioner. In the objection filed by the 2nd defendant's counsel, it was specifically mentioned that the documents 1 and 2 are not correctly mentioned in the list of documents. Further those documents are inadmissible documents. 11. On perusal of the document No.1 filed in the additional typed set of papers would reveal that the date of the calculation was mentioned as 17.08.2000 and some estimation was calculated and then it was struck off. According to the learned counsel for the petitioner, it was written by the first defendant, but except his contention, no evidence to show that it was written by whom. Furthermore, in that calculation, principal amount has not been mentioned. According to the learned counsel for the petitioner, it was Rs.40,000/- and the same has been repaid. 12. According to the learned counsel for the petitioner, it was written by the first defendant, but except his contention, no evidence to show that it was written by whom. Furthermore, in that calculation, principal amount has not been mentioned. According to the learned counsel for the petitioner, it was Rs.40,000/- and the same has been repaid. 12. On perusal of document No.2 would show that it is a mini note book and from 06.05.2001 to 15.12.2001, a total sum of Rs.9,600/- was mentioned and on 28.01.2003, Rs.5,000/- was received and it also contains some signatures. But no evidence to prove that it was written by whom and to whom the document was given. In such circumstances, prima facie this Court cannot decide that the documents are given by the first defendant to decide that the loan obtained by the plaintiff from the first defendant. But the plaintiff has every right to render those documents before the first defendant while he is in witness box and after admitted by him, the plaintiff can rely upon those documents before the trial Court without any authenticity. Now those documents cannot be received as evidence by the trial Court. As per the Order 13 Rule 3 of C.P.C., the Court may at any stage of the suit reject any document which it considers irrelevant and inadmissible in evidence. So the trial Court has rightly disallowed the documents Nos.1 and 2. Therefore, the impugned order passed by the trial Court does not warrant any interference and the revision petition is hereby dismissed. 13. In the result, the Civil Revision Petition is dismissed by confirming the fair and decreetal order dated 06.09.2013 in I.A.No.845 of 2013 in O.S.No.287 of 2009 on the file of the District Munsif Court, Madurantakkkam, Kanchipuram District. No costs. Consequently, connected Miscellaneous Petition is closed.