Madras High Court
Chandra vs V.Venugopal @ V.Chandrasekaran on 2 March, 2022
C.R.P(PD)No.2339 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.R.P(PD).No.2339 of 2017
and
CMP.No.10981 of 2017
1.Chandra
2.Rajendran
3.Venkat @ Venkatesan
4.Kesavan ..Petitioners
Vs.
1.V.Venugopal @ V.Chandrasekaran
2.Gnanasoundari
3.Shenbagavalli
4.Lokeswari
5.Saratha
6.Datchayani
7.Thilagavathy
8.Dhanveer Hussain
9.Shabina Hussain ..Respondents
1/10
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.2339 of 2017
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, against the judgment and decreetal order in I.A.No.1258 of 2016 in
O.S.No.149 of 2012 on the file of the District Munsif, Tambaram dated
02.03.2017.
For Petitioners : Mr.Avinash Wadhwani
for Mr.V.Raghavachari
For Respondents : No Appearance ( Names printed in
cause list)
ORDER
Heard the learned counsel for the petitioners. Notice had been
directed to the respondents, who are defendants in O.S.No.149 of 2012.
Though notice to R1 to R9 issued through Court has been served on
31.07.2017, there is no appearance for the respondents. Their names have
also been printed in the cause list. This would not be a deterrent to pass any
orders in this Civil Revision Petition.
2.The plaintiffs in O.S.No.149 of 2012, who are the petitioners
had filed the suit on the basis of assignment pattas granted with respect to
Gramanatham lands to one Dhananjayan, whose legal representatives are
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C.R.P(PD)No.2339 of 2017
the plaintiffs herein. The properties, for which such assignment pattas have
been granted is situtated in Survey No.58/2A, now Gramanatham Survey
No.58 and measures 0.03 Cents. There is also a house built in the said land.
There is also yet another property in Gramanatham Survey No.58/2 for
which, Patta had been granted in Patta No.432. Both the properties are
situated at Sembakkam Village, Tambaram Taluk in Kanchipuram District.
3.It is stated by the learned counsel for the petitioners / plaintiffs
that though the suit was originally instituted for permanent injunction
restraining the defendant from interfering with their peaceful possesion,
subsequently, an amendment had been made to convert the suit to one for
declaration also.
4.The defendant, who had raised an issue with respect to
assignment Pattas granted to the plaintiffs had claimed that Patta had also
been granted to him for the same Gramantham lands.
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C.R.P(PD)No.2339 of 2017
5.These issues are to be decided in the course of the trial in the
suit.
6.Trial had commenced. During the course of the trial, the
plaintiffs produced as documents. Exs.A39 to A41, which documents refer
to two separate assignment pattas in the name of the defendant. The
petitioners were able to obtain xerox copies of those two assignment pattas,
which were in the name of the defendant. They wanted to mark the xerox
copies. Though notice has been issued under Order 11 Rule 16 of C.P.C., to
the defendant to produce the originals of the two documents, which they
wanted to mark as Exs.A42 and A43, they were not permitted to do so. The
application in I.A.No.1258 of 2016 had been filed by the plaintiffs seeking
permission to mark the xerox copies but the learned District Munsif,
dismissed the said application, necessitating filing of the present revision
petition.
7.The learned counsel for the petitioners took the Court through
the aforementioned facts and stated under Order 11 Rule 16 of C.P.C., there
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C.R.P(PD)No.2339 of 2017
is a right of a party, either plaintiff or the defendant to call upon the opposite
side to produce documents in their possession.
8.In the order under challlenge in the revision, the District
Munsif, Tambaram had referred to Rule 75(3) of the Civil Rules of Practice
and found fault with the petitioners for not having approached the
competent authority probably, the jurisdictional Tahsildhar to obtain
certified copies of the two assignment pattas in the name of the defendant /
respondent and therefore, stated that production of xerox copies or issuance
of notice under Order 11 Rule 16 of C.P.C., would not suffice to strengthen
the case of the petitioners and rejected the said application.
9.Unfortunately, the learned District Munsif had not taken into
consideration illustration (g) to Section 114 of the Indian Evidence Act,
1872 where if notice is issued to produce a particular document in the
possession of the opposite party and if such document is not produced, an
adverse inference can be drawn by the Court that the documents have not
been produced only because they were adverse to the interest of the party,
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C.R.P(PD)No.2339 of 2017
who was in possession of such document. That particular finding should
have been given by the District Munsif and he should have proceeded to
draw such adverse inference against the respondent / defendant. That has
not been done.
10.To that extent, I would find fault with the order passed.
11.Giving an advise to the petitioners /plaintiffs to take recourse
to Section 75(3), does not lie on the District Munsif, who should have
exercised the principles asserted in the statute since the defendant had not
produced the documents, and drawn adverse inference against the defendant
for not producing the documents. That should have been the order which
should have been passed.
12.I would direct the Principal District Munsif to draw such
adverse inference if the defendant does not prodce the two assignment
pattas. If the defendant does not produce the documents, I would give
liberty to the revision petitioners / plaintiff to lead further evidence after
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C.R.P(PD)No.2339 of 2017
conclusion of the evidence of the defendant, by recalling the witness of the
plaintiff to mark the two xerox copies, since they are documents the
defendant had failed to produce. Therefore, a right had accrued to the
petitioners / plaintiffs to mark copies, which are secondary in nature, and the
Court should take judicial notice of those documents and also judicial notice
of the of the fact that the defendant not produced the originals.
13. The plaintiff is entitled to let in oral evidence with respect to
the two assignment pattas and if required, they must be permitted to mark
xerox copies. Let an opportunity be granted to the defendant to mark the
originals. If he does not, the District Munsif, Tambaram must draw adverse
inference against the defendant for not producing the originals and
thereafter, the plaintiffs may recall the witness to the plaintiffs and mark
secondary documents with respect to such assignment pattas.
14.With the above observations, this Civil Revision Petition is
disposed of. No costs. Consequently, connected miscellaneous petition is
closed.
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C.R.P(PD)No.2339 of 2017
15.Since the suit is of the year 2012, the learned District Munsif,
Tambaram is directed to dispose of the suit on or before 31.03.2023.
02.03.2022
kkn
Index:Yes/No
Internet:Yes/No
Speaking/Non-speaking order
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.2339 of 2017
To-
The District Munsif Court,
Tambaram.
https://www.mhc.tn.gov.in/judis
C.R.P(PD)No.2339 of 2017
C.V.KARTHIKEYAN, J.
KKN
C.R.P(PD).No.2339 of 2017
and
CMP.No.10981 of 2017
02.03.2022
https://www.mhc.tn.gov.in/judis
