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2019 DIGILAW 910 (MAD)

R. Balachandran v. S. Gnanasigamani Rajadurai

2019-04-03

S.RAMATHILAGAM

body2019
JUDGMENT : (Prayer: Civil Revision Petition filed under Section 115 of the Civil Procedure Code, praying this Court to set aside the Docket Order dated 18.2.2019 in unnumbered Notice in I.A.No..... in O.S.No.41 of 2017, dated 4.3.1992, on the file of the Principal District Munsif Court, Thoothukudi.) 1. This Civil Revision Petition has been preferred against the Docket Order, dated 18.2.2019 in unnumbered Notice in I.A.No..... in O.S.No.41 of 2017, dated 4.3.1992, on the file of the Principal District Munsif Court, Thoothukudi. 2. The Petitioner herein has preferred the present Civil Revision Petition against the Docket order made in Docket Order, dated 18.2.2019 in unnumbered Notice in I.A.No..... in O.S.No.41 of 2017, dated 4.3.1992. 3. The grievance of the Petitioner in the Civil Revision Petition is that the trial Judge has confused himself between the Petition filed under Order 18 of C.P.C., the right to begin the suit and notice to produce the document under Order 12 of Civil Procedure Code. The change of law on subject in Civil Procedure Code., the amendment Act, 1999 and the mandatory rules for the plaintiff and defendant is to be treated equally in a civil litigation and the Civil Procedure Code also provides the same. Order 8 Rule 1A of C.P.C.,is introduced in the Amended Act of 1999 to make it mandatory for the defendant to file the documents in Court on which he relies, however, this provision is not considered by the trial Judge. When there is a mention of the unregistered Will, dated 4.3.1992 in the statement made by the defendant, the defendant cannot get time to create a non-existent Will. When notice is given to the Court for production of the said document and the same is rejected by the trial Court, as the Petitioner sought for the original document to be produced by the defendant as per the amendment to Rule 18(1) of C.P.C., and the said document has to be produced to reach a settlement in the issue. Hence the grievance of the Petitioner is that the order of the learned Judge has to be set aside and the defendant has to be directed to produce the unregistered Will, dated 4.3.1992. 4. Hence the grievance of the Petitioner is that the order of the learned Judge has to be set aside and the defendant has to be directed to produce the unregistered Will, dated 4.3.1992. 4. The grievance of the Petitioner is that the suit is filed by him is for the relief of declaration declaring that the properties described in the schedule absolutely belongs to him and also for recovery of possession of the same and by directing the defendant to hand over the vacant possession of the scheduled mentioned properties within the time prescribed by the Court. The Petitioner is claiming right over the property by way of relevant document which he has enclosed along with the plaint. 5. The defendant in the written statement is claiming right over the said property by way of an unregistered Will executed by his grand-mother Glory Pushpammal, dated 4.3.1992. 6. The Petitioner also argued that he is very much aggrieved by the reference made by the learned Trial Judge by stating that: “TAMIL” This order was passed by the trial Judge on the notice filed by the plaintiff under Order 12 Rule 8 of C.P.C for which the learned trial Judge has passed an order. 7. Heard the learned counsel for the Petitioner and the learned counsel for the respondents and produced the materials placed before this Court. 8. The Petitioner, as plaintiff, aggrieved against the order, has preferred the present Civil Revision by stating that as per the amended C.P.C, the defendant who is claiming over certain property, has the every responsibility to produce the document along with the written statement. But he has not filed the same. Hence the notice to produce the said documents was filed by the plaintiff to the defendant. The learned Trial Judge without adhering to the provisions of the amended Act, has passed an http://www.judis.onicr.diner by stating that it is for the plaintiff to prove his case, since the suit is filed by him 5 by claiming right over the Release Deed and the declaration of the said deed also, which relief was sought for in the plaint. In such situation, the plaintiff cannot make a demand by filing the notice to the defendant to produce the said document which he has mentioned in the written statement. 9. The grievance of the Petitioner is only against the specific order that: “TAMIL” 9. In such situation, the plaintiff cannot make a demand by filing the notice to the defendant to produce the said document which he has mentioned in the written statement. 9. The grievance of the Petitioner is only against the specific order that: “TAMIL” 9. So the order of the trial Court is that the plaintiff claims right by way of certain documents and also for declaration to the effect that the property belongs to him which the defendant says it is not a genuine one and it is for the plaintiff to prove his case by examining himself. Even though the main case is posted in the year 2017 came to be posted in the list and when the trial Court is about to proceed with the trial, the Plaintiff as petitioner has filed this notice directing the defendant to produce the said document which he has mentioned in the written statement. Hence the trial Court is of the opinion that already there was an averment in the Written statement that the suit is barred by limitation and even the document by which the plaintiff is claiming right is a forged document, then the notice of the plaintiff to produce the document which is relied upon by the defendant, does not arise and he cannot be compelled to produce the same. There cannot be any grievance against the said order by the trial Judge. This is the order aggrieved against which, the Petitioner has preferred the present Civil Revision Petition. When the Plaintiff has filed the suit claiming right over the property, it is for him to prove his case by way of let in evidence and he is also given an opportunity to speak about the document which is relied upon by the defendant in the written statement. When the trial Court is about to commence the trial, the Petitioner filing this notice at the belated stage to produce the document, is rightly considered and rejected by the trial Judge. Now the demand of the plaintiff as petitioner in Civil Revision Petition is that as per the amended Act, it is for the defendant to produce the documents along with the written statement. 10. Now the demand of the plaintiff as petitioner in Civil Revision Petition is that as per the amended Act, it is for the defendant to produce the documents along with the written statement. 10. On perusal of the records, it is observed that the Written statement was filed as early as on 9.1.2018 and subsequent to the filing of the Written statement, issues were framed and the trial Court has also take steps to initiate trial proceedings. Hence the order of the trial Court does not cause any adverse effect or any grievance to the plaintiff and that the defendant cannot be compelled to produce the said document. It is case of the defendant that he is claiming right over the property by way of the said document and he cannot be compelled to produce the same and the same will not cause any prejudice to the Petitioner/Plaintiff to prove his case before the trial Court. Hence the order of the trial Judge does not have any grievance to the Petitioner/Plaintiff or irregularity. 11. Hence the grievance of the Petitioner against the docket order is not sustainable in law and accordingly, the Civil Revision Petition is dismissed. The trial Court is also directed to proceed with the trial in the manner known to law. The petitioner is directed to cooperate with the trial Court for early disposal of the case. No costs. Consequently, connected Miscellaneous Petition is dismissed.