Velmurugan vs Arulmighu Chokkanathaswami
2021 Latest Caselaw 21124 Mad

                                                                        C.R.P.(PD)No.1285 of 2017

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 22.10.2021

                                                      CORAM:

                             THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                             C.R.P.(PD)No.1285 of 2017
                                             and C.M.P.No.5999 of 2017

                      Velmurugan                                                .. Petitioner
                                                             Vs.

                      Arulmighu Chokkanathaswami
                        Venkatesaperumal Devasthanam
                      represented by its Trustee
                      Balasubramania Mudaliar
                      East street, Naduveerapattu Village and Post
                      Cuddalore Taluk and District.                            .. Respondent


                      PRAYER: Civil Revision Petition filed under Article 227 of the

                      Constitution of India, against the fair and decretal order dated 09.03.2017

                      made in I.A.No.144 of 2017 in O.S.No.19 of 2013 on the file of the

                      Principal District Munsif Court, Cuddalore.



                                         For Petitioner     : Mr.Balamurugane


                      1/9


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                                                                        C.R.P.(PD)No.1285 of 2017

                                         For Respondent     : Mr.R.Gururaj

                                                        ORDER

(The matter is heard through “Video Conferencing/Hybrid Mode”.)

Civil Revision Petition is filed against the fair and decretal order

dated 09.03.2017 made in I.A.No.144 of 2017 in O.S.No.19 of 2013 on

the file of the Principal District Munsif Court, Cuddalore.

2.The petitioner is plaintiff and respondent is defendant in

O.S.No.19 of 2013 on the file of the Principal District Munsif Court,

Cuddalore. The petitioner filed the said suit for declaration and

injunction. The respondent filed written statement and is contesting the

suit. The petitioner filed two applications in I.A.No.143 of 2017 under

Section 151 of C.P.C. to re-open the case and I.A.No.144 of 2017 under

Order XVIII Rule 17 of C.P.C. to re-open and re-call P.W.1 for further

examination of P.W.1 for marking document.

3.According to the petitioner, he was under the impression that

unregistered sale deed dated 22.02.1997 was marked on the side of the

petitioner after payment of stamp duty and penalty. By inadvertence, the

http://www.judis.nic.in C.R.P.(PD)No.1285 of 2017

said document was not marked. Unless the said document is marked, the

petitioner will be put to irreparable loss and hardship.

4.The respondent filed counter affidavit and stated that the

petitioner filed proof affidavit on 02.08.2013. The document now sought

to be marked being an unstamped and unregistered document, the learned

Judge directed the petitioner to pay the stamp duty and penalty. The

petitioner did not pay the stamp duty and penalty for about three years.

On 10.03.2016, arguments were heard with regard to marking of

document. The learned Judge by the order dated 24.03.2016, rejected the

request of the petitioner and held that document cannot be marked. The

petitioner did not challenge the said order. In the earlier suit O.S.No.383

of 2000 also, the same request of the petitioner was rejected. The

petitioner marked other documents on 13.04.2016. P.W.1 was cross-

examined and after P.W.3 was examined, the case was posted for

arguments. The learned counsel for the petitioner advanced arguments

and suit was adjourned for arguments on behalf of the respondent. At that

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stage, the present application was filed by the petitioner and the same is

not maintainable. The present application is hit by the principles of

resjudicata and prayed for dismissal of the said I.A.

5.The learned Judge by common order dated 09.03.2017,

considering the judgment reported in 2015 (6) CTC 467

[Ramachandran vs. Guruvi Reddy], dismissed the I.A. holding that the

petitioner is tracing his title based on the unregistered document, which

cannot be permitted to be marked and already a specific adjudication was

given not permitting the petitioner to mark the document.

6.Against the said fair and decretal order dated 09.03.2017 made in

I.A.No.144 of 2017 in O.S.No.19 of 2013, the petitioner has come out

with the present Civil Revision Petition.

7.The learned counsel appearing for the petitioner contended that

the learned Judge failed to see that the petitioner has already paid stamp

duty and penalty. An unregistered sale deed can be relied on by the

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petitioner for collateral purpose. The property was assigned by the

Government for construction of huts for poor people. An assignment

patta is enough to prove the title and registered sale deed is not necessary

to prove the possession and title against the private individual, when the

case is not filed against the Government and prayed for allowing the

Civil Revision Petition.

8.The learned counsel appearing for the respondent made

submissions in support of the order of the learned Judge and prayed for

dismissal of the Civil Revision Petition.

9.Heard the learned counsel appearing for the petitioner as well as

the learned counsel appearing for the respondent and perused the entire

materials on record.

10.From the materials on record, it is seen that the petitioner in the

suit for declaration and injunction, sought to produce unregistered sale

deed. The trial Court directed the petitioner to pay the stamp duty and

http://www.judis.nic.in C.R.P.(PD)No.1285 of 2017

penalty. The petitioner did not pay the stamp duty and penalty as ordered

by the learned Judge, for three years. By the order dated 24.03.2016, the

learned Judge held that unregistered document cannot be marked. The

petitioner did not challenge the said order, but examined P.W.1 to P.W.3

and marked other documents. After closure of evidence of respondent,

the suit was posted for arguments. The counsel for the petitioner argued

the matter and when the suit was posted for arguments of respondent, the

petitioner filed present two applications I.A.No.143 of 2017 to re-open

the case and I.A.No.144 of 2017 to re-open and re-call P.W.1. Both the

I.As. were dismissed on the ground that already an adjudication was

made rejecting the request of the petitioner to mark the document and

petitioner is tracing title only through unregistered document. It is not the

case of the petitioner before the learned Judge that the petitioner has

already paid stamp duty and penalty. On the other hand, in the affidavit

filed in support of the present I.A., the petitioner has stated that the

petitioner was under the impression that unregistered sale deed was

marked after payment of stamp duty and penalty and by inadvertence, the

http://www.judis.nic.in C.R.P.(PD)No.1285 of 2017

said document was not marked. Further it is not the case of the petitioner

that he is relying on unregistered document only for collateral purpose.

The petitioner has also not denied that in the earlier suit O.S.No.383 of

2000 also, the request of the petitioner to mark the said document was

rejected.

11.Further the petitioner filed two applications in I.A.Nos.143 and

144 of 2017 to re-open and re-call P.W.1. The learned Judge considering

all the materials in proper perspective and the judgment reported in 2015

(6) CTC 467 cited supra, by common order dated 09.03.2017, dismissed

both I.As. The petitioner has not filed any revision challenging the order

dismissing the I.A. for re-opening the case. Unless the case is re-opened,

PW.1 cannot be re-called for further evidence. On this ground also, this

Civil Revision Petition is liable to be dismissed. There is no error or

irregularity in the order of the learned Judge warranting interference by

this Court.

12.For the above reasons, the Civil Revision Petition stands

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dismissed. No costs. Consequently, connected Miscellaneous Petition is

closed.

22.10.2021

Index : Yes/No Internet: Yes/No kj

To

The Principal District Munsif Cuddalore.

V.M.VELUMANI,J.

http://www.judis.nic.in C.R.P.(PD)No.1285 of 2017

Kj

C.R.P.(PD)No.1285 of 2017 and C.M.P.No.5999 of 2017

22.10.2021

http://www.judis.nic.in