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2015 DIGILAW 1430 (MAD)

G. Venkatesan v. Balu

2015-03-12

P.R.SHIVAKUMAR

body2015
JUDGMENT:- 1. The arguments advanced on both sides are heard. 2. The plaintiffs in the original suit O.S.No.484 of 2010 pending on the file of District Munsif Court, Polur, Tiruvannamalai District is the petitioner in the present revision filed under Article 227 of the Constitution of India. He has filed the suit against the respondent/ defendant for recovery of a sum of Rs.50,000/- plus interest based on a promissory note. The suit is being contested by the respondent/defendant on the basis of his plea that under some other pretext, pronotes were obtained by the revision petitioner/plaintiff from the respondent / defendant, who was a subordinate of the revision petitioner/plaintiff, and other subordinates and that using one such pronote, the petitioner/plaintiff, after his retirement, has chosen to file the above said suit against the respondent herein/defendant. In an attempt to show that the petitioner/plaintiff could not have lent the amount, the respondent herein/defendant wanted to rely on the income tax returns of the revision petitioner/plaintiff relating to the financial year in which the amount was claimed to have been lent. 3. The learned counsel for the respondent also clarifies the position that by the time the amount was said to be lent under the suit promissory note, the petitioner herein/plaintiff had demitted office and he was admittedly doing money lending and other business and that in such an event, the amount allegedly lent under the suit promissory note could have been reflected in the income tax return submitted by him for the financial year 2007-2008, corresponding assessment year 2008-2009. 4. The learned trial Judge, after hearing, chose to allow the petition by the impugned order dated 13.07.2011. The crux of the order is that the income tax return of the revision petitioner/plaintiff should be sent for from the Assistant Commissioner of Income Tax, Vellore so as to enable the respondent/defendant to show that the said return does not reflect the amount allegedly lent by the revision petitioner/plaintiff. However, as against an order directing an officer to produce a document in the Court, which according to the respondent/plaintiff, will prove his contention that he did not borrow any amount from the revision petitioner/plaintiff or at least improbablize the case of the revision petitioner/plaintiff, the revision petitioner/plaintiff cannot have any valid grievance. However, as against an order directing an officer to produce a document in the Court, which according to the respondent/plaintiff, will prove his contention that he did not borrow any amount from the revision petitioner/plaintiff or at least improbablize the case of the revision petitioner/plaintiff, the revision petitioner/plaintiff cannot have any valid grievance. In fact, the respondent / plaintiff could have very well served a notice on the revision petitioner/ plaintiff to produce the income tax return for the relevant year and in case of failure to produce it, he could have urged the Court to draw an adverse inference against the revision petitioner/plaintiff. Hence, this Court does not find any material defect in the conclusion of the trial Court in allowing the petition filed by the petitioner for summoning the Income Tax return of the revision petitioner/plaintiff pertaining to the particular financial year. 5. However, the prayer made in the application is coupled with abundant mistakes besides conveying a meaning, which could not have been intended by the respondent herein/defendant in the application. The prayer is said to have been made under Rule 76 of the Civil Rules of Practice and the prayer is made in the following language: “For the reasons more fully stated in the accompanying affidavit it is prayed that this Hon'ble Court may be pleased to direct the assistant Commissioner at (an incorrect preposition in stead of correct preposition “of”) Income Tax, Vellore circle to sent for (the correct word should “to send for”) the respondent/defendant's income tax return statement (receipts & payments details) for the assessment year 2008-2009 relating to the financial year of 2007-2008”. 6. A reading of the said prayer eliminating the spelling mistakes and grammatical mistakes, will give a meaning that as per the prayer the Assistant Commissioner of Income Tax, Vellore has to send for the document. From where? shall be the next question. The prayer should have been that the Court shall send for the documents from the Assistant Commissioner of Income Tax and not for a direction to the Assistant Commissioner to send for. Even otherwise, Rule 76 of Civil Rules of Practice does not contemplate an order sending for a document from a public officer other than a Court. It contemplates the issuance of a certificate to the applicant to enable him to obtain a certified copy from the appropriate authority. Even otherwise, Rule 76 of Civil Rules of Practice does not contemplate an order sending for a document from a public officer other than a Court. It contemplates the issuance of a certificate to the applicant to enable him to obtain a certified copy from the appropriate authority. Rule 75 of the Civil Rules of Practice deals with the procedure for causing production of documents in the custody of a public office other than a Court. In such a case, the proper procedure is to issue a summons to the public officer to produce the document and not to send for such a document from the public officer which shall be done in the case of a document in another Court, for which the appropriate rule shall be 74. In cases falling under Rule 74, no summons shall be issued and a letter of request in Form No.22 shall be issued, whereas in cases coming under Rule 75, a summons shall be issued to the public Officer for the production of the document. Rule 75 shall be resorted to only in cases wherein the party applying for such summons shall not be in a position to get the certified copy of the document from the public officer concerned. When certified copies can be obtained and the same will serve the purpose, the prayer should be made only under Rule 76 of the Civil Rules of Practice for the issuance of a certificate to enable him to get the certified copy. Only under one exceptional circumstance wherein the production of the certified copy will not serve the purpose and the production of the original itself shall be necessary for the perusal of the Court, despite the availability of the procedure under Rule 76, summons under Rule 75 can be issued. 7. In the case on hand, the decreetal order simply states as follows: 1. The petition is allowed. 2. No costs.” What shall be the follow up action to be taken in the office of the Court below is not clear. The order should have been for the issuance of a certificate to the respondent/defendant to enable him to get a certified copy of the Income Tax return of the revision petitioner/ plaintiff pertaining to the financial year 2007-2008 (assessment year 2008-2009). 8. The order should have been for the issuance of a certificate to the respondent/defendant to enable him to get a certified copy of the Income Tax return of the revision petitioner/ plaintiff pertaining to the financial year 2007-2008 (assessment year 2008-2009). 8. For all the reasons stated above, while coming to the conclusion that the challenge made to the order of the learned trial Judge by the revision petitioner/plaintiff is bound to fail, this Court is of the considered view that the order of the trial Court shall be clarified as one directing issuance of a certificate under Rule 76 of the Civil Rules of Practice. 9. In the result, the Civil Revision Petition is dismissed with the above said clarification regarding the scope of the order passed by the trial Court. In view of the fact that the suit is of the year 2010, it shall be just and proper to direct the trial Court to expedite the trial of the suit and dispose of the same at an early date, in any event not beyond the period of six months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed.