Madras High Court
Indravelu vs Jameela Ruksana on 21 April, 2021
C.R.P.(PD)Nos.75, 76 and 82 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.04.2021
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P(PD).Nos.75, 76 and 82 of 2021
and C.M.P.No.566 of 2021
Indravelu ...Petitioner
in all C.R.Ps
Vs
1.Jameela Ruksana
2.Athiqur Rehaman
3.Kirubakaran
4.Mahadevan
5.S.Suresh ...Respondents
in all C.R.Ps.
Revision Petitions filed under Article 227 of the Constitution of India
to set aside the fair and decreetal orders dated 27.11.2019 in
I.A.Nos.13943/2018, 13945/2018 and 13944/2018 in O.S.No.2502 of 2018
on the file of the XVIII Assistant City Civil Court, Chennai.
For Petitioners : Mr.R.Saravanan
For Respondents
R1 & R2 : M.V.K.Sathiamurthy
R5 : Mr.R.Sathyanarayanan
R3 & R4 : No appearance
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
COMMON ORDER
All the three revision petitions have been filed by the plaintiff in
O.S.No.2502 of 2018 which is now pending on the file of the XVIII
Additional City Civil Court, Chennai, questioning the orders passed in
I.A.Nos.13943/2018, 13945/2018 and 13944/2018 respectively.
2.O.S.No.2502 of 2018 had been filed by the plaintiff against five
defendants. The 3rd defendant is his cousin brother, the 4th defendant is his
brother, 1st and 2nd defendants are the purchasers of the property and the 5th
defendant is the subsequent purchaser, who entered into an agreement to
develop the suit property with the 1st and 2nd defendants.
3.The suit had been filed in May 2018, seeking a declaration that a
sale deed dated 18.06.1984 registered as Document No.2090/1984 on the
file of the Sub Registrar, Sembium as null and void and not binding on the
plaintiff and for a further declaration to declare that a sale deed dated
18.06.1984 registered as Document No.2091/1984 also on the file of the
Sub Registrar, Sembium as null and void and not binding on the plaintiff
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
and for a permanent injunction restraining the defendants not to alienate or
to encumber the suit schedule property and for a permanent injunction
restraining the defendants from putting up any further construction in the
suit property and for costs. The plaintiff had stated that the cause of action
had arisen on 18.11.1983 when a deed of lease was executed by the plaintiff
and the 3rd and 4th defendants in favour of the 1st defendant and on
18.06.1984 when a sale deed had been executed by the 3rd defendant in
favour of the 1st defendant which was registered as Document No.2090/1984
and again on 18.06.1984 when Document No.2091/1984 had been executed
and on 07.11.12013 when an agreement of sale had been executed by the 2 nd
defendant in favour of the 5th defendant which had been registered as
Document No.3748/2013 and on 20.03.2018 when the plaintiff had lodged a
police complaint against defendant herein.
4.It is thus effectively seen from a reading of the plaint that the
plaintiff questions the execution of the sale deeds dated 18.06.1984
registered as Document Nos.2090/1984 and 2091/1984 on the file of the
Sub Registrar, Sembium. However the suit, as stated above, had been filed
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
only in May 2018 and the immediate cause of action had been claimed to
have arisen in March 2018 when the plaintiff had lodged a police complaint.
Whether lodging a police complaint could be a cause of action is an issue to
be decided in the course of trial.
5.In the said suit, the 1st, 2nd and 5th defendants had joined issues with
the plaintiff and had filed written statements. The 3 rd and 4th defendant have
not bothered to participate in the judicial proceedings. It is only natural
since they are the cousin brother and brother of the plaintiff herein.
6.It must also be mentioned that the plaintiff had not stated anything
in the plaint with respect to his relationship with the 1 st and 2nd defendants.
However, the 1st defendant in his written statement stated that the plaintiff
was working under her in a gas agency. It was not known as to why the
plaintiff had not chosen it necessary to point out that particular fact in his
plaint. This is stated by me because the learned counsel for the plaintiff,
stated that the 1st defendant had taken advantage of the fact that he was an
employee under the 1st defendant though that particular statement had not
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
been, as stated above, mentioned in the plaint.
7.Pending the said suit, the plaintiff came to file three interlocutory
applications and the orders passed thereunder are the subject matters of the
present revision petitions.
8.I.A.No.13943 of 2018 had been filed under Order XI Rule 17 of
Code of Civil Procedure calling upon the 1 st, 2nd and 5th defendants to
produce the original of the sale deed dated 18.06.1984 registered as
Document No.2090/1984 and the original of the sale deed dated 18.06.1984
registered as Document No.2091/1984 and the lease deed dated 18.11.1983
registered as Document No.5137/1983. All the said documents have been
registered in the office of the Sub Registrar at Sembium. There is no
averment that prior to filing of the said application notice calling upon the
said defendants to produce the documents had been issued or not. The
application under Order XI Rule 14 CPC appears to have been filed straight
away even without issuing any notice to produce documents.
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
9.Thereafter, the plaintiff had also filed I.A.No.13944 of 2018 and the
relief sought was for a direction to the Sub Registrar, Sembium to produce
the thumb impression note pertaining to the sale deeds dated 18.06.1984
registered as Document Nos.2090/1984 and 2091/1984 and with respect to
the lease deed dated 18.11.1983.
10.In I.A.No.13945/2018, the plaintiff sought a direction to the Court
to forward the original document and the thumb impression notes for
comparison of the plaintiff's alleged signature as contained in those
documents with the admitted signature of the plaintiff in the lease deed
dated 18.11.1983 for an opinion of the hand writing expert.
11.Quite strangely, though in I.A.No.13944/2018, the plaintiff sought
a direction to the Sub Registrar, Sembium to produce the thumb impression
note, the plaintiff had not sought for comparison of the thumb impression as
found in the said Register with his thumb impression. He only wanted a
comparison of the signatures. It is trite to point out that the opinion of a
hand writing expert is not final and it can only be used as corroborative
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
evidence to any evidence already let in. On the other hand, the opinion of a
Fingerprint expert is more definite in nature. But the plaintiff has not come
forward to subject his thumb impression said to be found in the said register
to be compared with his own thumb impression.
12.Counters had been filed to the said interlocutory applications.
Primarily, the respondents stated that the plaintiff should lead evidence and
prior to leading evidence, calling upon the Court to enter into a roving and
fishing enquiry with respect to the documents which had been registered in
the year 1984 would be most inappropriate. It had also been stated that the
plaintiff is a resident of the very same area and it was the first respondent
who pointed out that the plaintiff was an employee. The plaintiff had not
raised any protest over the past 30 years and had only now thought it fit to
institute the suit questioning the sale deed of the year 1984.
13.Heard Mr.R.Saravanan, learned counsel for the petitioner/plaintiff,
Mr.V.K.Sathiamurthy, learned counsel for the 1st and 2nd respondents/1st and
2nd defendants and Mr.R.Sathyanarayanan, learned counsel for the 5th
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
respondent/5th defendant.
14.Mr.V.K.Sathiamurthy, learned counsel for the 1st and 2nd
respondents also placed reliance on an unreported judgment of the Division
Bench of this Court reported in (2010) 5 LW 454 [Bajaj Auto Ltd., Bombay
Pune Road, Akurdi Pune-411 035, State of Maharashtra rep. by
S.Ravikumar vs. TVS Motor Company Ltd., Jaylakshmi Estates, No.8,
Haddows Road, Chennai – 600 006] placing reliance on Order 18 CPC
which cast a duty on the plaintiff to begin evidence and as a matter of fact
had reiterated the established procedure that it is for the plaintiff to graze the
witness box first and he cannot take shift from that contingency and avoid
that particular responsibility since he had instituted the suit.
15.I have perused the records and have given careful consideration to
the arguments advanced.
16. The suit is now pending and the trial is to begin. It is a
fact that the Court of the first instance is the Court whether the facts will
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
have to be settled to the extent possible. While determining the facts, it is
also expected that the witnesses will speak the truth and reveal the truth in
the witness box. The Court will also have to ascertain the truth behind any
averment in the plaint or in the written statement. That exercise is
undertaken by inviting the parties to adduce evidence. The plaintiff has a
responsibility to lead evidence to state the facts stated.
17.In the instant case, the sale deeds are of the year 1984. The suit
had been filed in the year 2018 questioning the execution of the sale deeds
and throwing a doubt on its veracity and on the very fact of their execution.
18.Let me not ponder any further on the said aspect since that is a
responsibility of the Trial Court to decipher whether the said allegation
stands proved or not. Quite apart from getting into the witness box to
establish the case, the plaintiff has come forward with these three
applications calling upon the defendants, in whose possession the
documents are, to produce the originals and also for production of the
Thumb Impression Register from the office of the Sub Registrar, Sembium
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and to forward the sale deeds, for comparison of the signature. To repeat,
there is no relief sought to compare the thumb impression as found in the
register with the thumb impression of the petitioner.
19.The learned Judge in the course of his order, had, quite strangely
entered into a discussion on facts not stated. In the order, with respect to the
contention that the respondents/defendants should produce the original sale
deeds, the learned Judge appears to have substituted himself in the place of
the 5th respondent/5th defendant and stated that the 5th respondent/agreement
holder who has to construct flats ought to be in possession of the original
documents and he should continue in possession of the original documents
in order show the said documents to the prospective purchasers of the flat
through bank loan. These are reasons which are totally extraneous and
which are not at all required to be stated when a simple request is made for
comparing the signatures found in the document with the admitted
signatures of the plaintiff. The learned Judge had also stated that the sale
deeds are of the year 1984, and nearly about 34 years had lapsed and
therefore, under Section 90 of the Indian Evidence Act, 1872, a reasonable
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
presumption can be drawn that the documents are genuine and should not
be impugned unnecessarily.
20. Be that as it may, without entering into a discussion of
the rival claims of the parties which will have to be adjudged during the
course of trial, I would afford an opportunity to the plaintiff to send these
documents for comparison by a hand writing expert, namely, the signatures
as found in Document Nos.2090/1984 and 2091/4984 with the signatures as
found in the lease deed which had been registered as Document
No.5137/1983. The defendants, if they are in possession of Document
Nos.2090/1984 and 2091/194 which are both sale deeds dated 18.06.1984,
may produce the same and file them in Court. Similarly, if they are in
possession of the original lease deed dated 18.11.1983 registered as
Document No.5137/1983 they may also file that in Court. Thereafter, the
learned Jude may forward all the three documents for comparing the
signatures of the plaintiff as found in the three documents for obtaining an
opinion from the hand writing expert, Directorate of Forensic Laboratory,
Chennai. Simultaneously, the learned Judge may also direct the Sub
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
Registrar, Sembium to produce the registers wherever the signature of the
plaintiff is found maintained at the time of registration of the sale deeds
dated 18.06.1984 registered as Document Nos.2090/1984 and 2091/1984
and also lease deed dated 18.11.1983 registered as Document
No.5137/1983. The signature in the said register may also be forwarded for
comparison by the hand writing expert.
21.I am deeply aware that the plaintiff has now indulged in instituting
the suit nearly after 34 years of executing the sale deeds in favour of the 1st
and 2nd defendants. He now impugns the sale deeds after watching the flats
being constructed in the said area. Naturally the value of the land had gone
up. The plaintiff has been a resident of the said area from the very
beginning. He had never questioned any development over the said land and
only when flats are being constructed, that he had instituted a suit. He must
therefore be put in terms.
22.Placing reliance on the judgment of the Hon'ble Supreme Court in
the case of Maria Margarida Sequeira Fernandes and others vs. Erasmo
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Jasck De Sequeira (Dead) Through Lrs. [2012 (5) SCC 370], wherein the
Hon'ble Supreme Court had directed that if at all any order is to be granted
in favour of the plaintiff, there should be a direction to deposit costs so that
the defendants, if they succeed would be compensated adequately, I would
also direct the petitioner herein to deposit a sum of Rs.50,000/- [Rupees
Fifty Thousand only] to the credit of O.S.No.2502 of 2018 on the file of the
XVIII Additional City Civil Court, Chennai. Let the learned Judge hold over
the said amount and take a decision as to whether to refund the same to the
plaintiff or make it payable to the 1st, 2nd and 5th defendants at the time of
final judgment in the suit. The learned Judge is at liberty to award
additional costs, if it is thought warranted.
18.With the above directions, the Civil Revision Petitions are disposed
of. No order as to costs. Consequently, connected miscellaneous petition is
closed.
21.04.2021
cse
Index:Yes/No
Internet: Yes/No
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C.R.P.(PD)Nos.75, 76 and 82 of 2021
C.V.KARTHIKEYAN, J,
cse
To
The XVIII Additional Judge,
City Civil Court, Chennai
C.R.P.(PD)Nos.75, 76 and 82 of 2021
and C.M.P.No.566 of 2021
21.04.2021
http://www.judis.nic.in
