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2023 DIGILAW 1223 (AP)

Indukuri Sai Manohara Raju v. Guntu Aseervadam

2023-08-21

B.S.BHANUMATHI

body2023
JUDGMENT 1. A question whether a document of title kept by the petitioner/defendant with the mortgagee bank can be summoned from the bank without seeking the consent of the bank in writing to produce it, has cropped up in this matter. 2. This Revision Petition is filed under Article 227 of the Constitution of India against the Order dtd. 28/9/2022, dismissing petition in I.A.No.158/2022 in O.S.No.165/2017 on the file of the Court of the Principal Junior Civil Judge-cum-Judicial Magistrate of I Class, Nidadavolu, by the defendent under Order XVI, Rule 6 and Sec. 151 of CPC seeking direction to wife of P.W.2, i.e., Nambri Vijaya Surya Kumari to produce the original registered sale deed dtd. 9/12/2013 registered at SRO, Sajjapuram, Tanuku, in order to send the same to a hand writing expert along with the suit promissory note for comparison of the signatures of the petitioner/defendant for opinion. 3. The respondent/plaintiff filed the suit against the petitioner/defendant for recovery of money based on the promissory note. The defendant filed the written statement disputing the execution of the suit promissory note. Therefore, the defendant filed I.A.No.158/2022 stating that the suit promissory note is a rank forgery and the same has been created by Namburi Ramabhadraraju, who is the defendant in the suit filed by the petitioner herein vide O.S.No.66/2016, pending on the file of Court of Junior Civil Judge, Tanuku. He furher stated that he filed a petition under Sec. 45 of the Evidence Act to send the original suit promissory note to a hand writing expert by comparing the same with the admitted signatures of the petitioner available on the registered sale deed dtd. 9/12/2013, which was registered in the SRO, Sajjapuram, Tanuku, and the said petition was allowed by the Court giving direction to deposit Rs.5,000.00 for expenses of the expert, and accordingly, the petitioner deposited the said amount in Court. The petitioner further stated that he filed another petition I.A.No.631 of 2019, requesting the Court to issue summons to the SRO, Sajjapuram, Tanuku, directing him to produce the thumb impression relating to the registered sale deed dtd. 9/12/2013, for the purpose of comparison of the admitted signatures therein with the disputed signature on the said promissory note, however, the said petition was dismissed on merits, and therefore, it is necessary to summon for production of the original registered sale deed dtd. 9/12/2013, for the purpose of comparison of the admitted signatures therein with the disputed signature on the said promissory note, however, the said petition was dismissed on merits, and therefore, it is necessary to summon for production of the original registered sale deed dtd. 9/12/2013 which is in the custody of P.W.2 and his wife. 4. The petition was opposed by the respondent/plaintiff by filing counter, denying the averments in the petition and further stating that the reasons stated by the petitioner cannot be accepted, and that the proceedings have been dragged on since 2017 and filing of this petition is yet another step to delay the suit for long time by misusing the provisions of law. It is further stated that the petitioner filed the earlier petition under Sec. 45 of the Indian Evidence Act even without having document in his hand and that when the petition was allowed, it is the duty of the petitioner to produce the relevant document. However, the petitioner failed to do so. It is also stated that if at all the petitioner wanted to file the petition, it would have been filed immediately, but the petitioner filed this petition when the matter was posted for arguments. 5. After hearing both sides, the trial Court dismissed the petition observing that the document is sought to be produced from the custody of the 3rd party, who cannot even be summoned either to give evidence or to produce any of her own document. It is also observed that it is the duty of the petitioner to produce any document having his admitted signature for the relevant period of the said promissory note. But, the petitioner did not do so. 6. Having aggrieved by the order, this Revision Petition was filed stating that dismissing I.A.No.158 of 2022 on the ground that the person sought to be summoned to produce document is 3rd party to the proceedings and cannot be compelled is contrary to the decision of the Supreme Court in M.L.Sethi Vs R.K.Kapur, AIR 1972 SC 2379 wherein it was held that any person can be summoned to produce a document. It is further stated that the expression 'any person' summoned to produce document under Order XVI, Rule 6 CPC, includes any person whether summoned to give evidence as a witness or not. It is further stated that the expression 'any person' summoned to produce document under Order XVI, Rule 6 CPC, includes any person whether summoned to give evidence as a witness or not. It is further contended that as per the decision in Lakshmi and another vs Chinnammal Alias Rayyammal and others, (2009) 13 SCC 25 it was held that to bring on record a document which is essential for proving the case of a party, ordinarily the same should not be refused and that endeavor must be made to arrive at a just decision. The petitioner further placed reliance on the decision of this High Court in Byalla Devadas Vs Sivapuram Rama Yogeswara Rao,[CRP No.67 of 2022, dt:16/3/2022] stating that the signatures on Vakalat and written statement cannot be considered as the signatures of assured standard for the purpose of opinion of an expert. 7. The learned counsel for the petitioner was heard. Though, the matter was adjourned for hearing the respondent, there is no representation for the respondent. 8. Before going into merits of the contentions raised by the petitioner, it is relevant to mention that Sec. 130 of the Evidence Act which stipulates that no witness, who is not a party to a suit, shall be compelled to produce his title deeds of any property or any document by virtue of which he owns any property as a pledge or mortgage etc., unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims. 9. The decision in the case of M.L.Sethi (supra) has no application to the present case since the provision in Order XI CPC in relation to their application to the proceedings under Order XXXIII CPC, but not Order XVI CPC, were under consideration. 10. The decision in Lakshmi (supra) has not considered Sec. 130 of the Evidence Act and so it cannot be applied to a case where the document to be summoned is covered by Sec. 130 of the Evidence Act. 11. 10. The decision in Lakshmi (supra) has not considered Sec. 130 of the Evidence Act and so it cannot be applied to a case where the document to be summoned is covered by Sec. 130 of the Evidence Act. 11. Merely for the reason that the document sought is essential as the signatures on the vakalat and the written statement cannot be considered as signatures of assured standard for comparison, in the light of the bar under Sec. 130 of the Evidence Act, unless the condition therein is complied, jurisdiction under general enabling provision under Order XVI, Rule 16 CPC cannot be invoked. Further, merely because a document is required, when there is a statutory bar, the necessity cannot over ride the bar. 12. In view of the rider placed by virtue of the above provision, the petitioner cannot seek the Court to give directions by which the person directed to produce the document of title deed will be compelled without agreeing in writing to produce the said document. As the relief sought by the petitioner is against the statutory bar, the petitioner is not entitled to the relief claimed without taking steps to obtain the consent in writing from the person against whom he sought direction for production of the document. Therefore, there is no merit in the revision in the result. 13. The Trial Court though has not expressly stated about Sec. 130 of the Evidence Act, the expression is akin to the said provision. The result in the order doesn't require interference. 14. With the above observation, the Civil Revision Petition is dismissed. There shall be no order as to costs. Pending miscellaneous applications, if any, shall stand closed.