Madras High Court
Samayamuthu vs State Of Tamilnadu on 10 April, 2023
C.R.P(MD)No.2302 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.04.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.2302 of 2022
and
C.M.P(MD)No.11064 of 2022
1.Samayamuthu
2.Karuppasamy ...Petitioners/Petitioners/
Plaintiffs
Vs.
1.State of Tamilnadu
Represented by the District Collector,
Sivagangai District.
Sivagangai.
2.The District Backward Class Welfare Officer,
District Backward Class cum Most Backward,
Class Welfare Department,
Sivagangai District,
Sivagangai.
3.The Sub Registrar,
Thiruppuvanam Sub Registration Office,
Thiruppuvanam Taluk,
Sivagangai District. ... Respondents/Respondents/
Defendants
1/15
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C.R.P(MD)No.2302 of 2022
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside the order and decree dated 20.10.2022
made in I.A.No.6 of 2022 in O.S.No.4 of 2020 on the file of the District
Munsif Cum Judicial Magistrate, Thiruppuvanam, Sivagangai District.
For Petitioner : Mr.G.Gomathi Sankar
For Respondents : Mr.M.Siddharthan
Additional Government Pleader
ORDER
The petitioners are the plaintiff before the District Munsif cum
Judicial Magistrate, Thiruppuvanam, Sivagangai District, in O.S.No.4 of
2020. The petitioners have filed the said suit for declaration and for
permanent injunction restraining the respondents/defendants from
interfering with the peaceful possession and enjoyment of the property.
2. The petitioner had filed I.A.No.6 of 2022 under Order 16 Rule 1
of C.P.C., read with Rule 75 of the Civil Rules of Practice on
27.07.2022. The said application was perhaps required to be filed under
Order 16 Rule 6 of C.P.C to summon the documents. I.A.No.6 of 2022
was filed after the evidence of D.W.1 was recorded on 16.03.2022, when
the case was listed for arguments. On behalf of the defendants, 1 witness
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C.R.P(MD)No.2302 of 2022
was examined and 7 exhibits were marked, which included Ex.D.7. The
Trial Court rejected the application filed by the petitioner with the
following observations:
"6.mry; tof;fpy; jpUg;Gtdk; tl;lhr;rpah; gp.rh.1
Mf tprhuiz nra;ag;gl;L mtuJ tprhuizapy; gp.rh.
1 Kjy; 7 tiu Mtzq;fs; FwpaPL nra;ag;gl;Ls;sJ.
gp.rh.1 rhl;rpahf tprhuiz nra;ag;gl;L> mth; %yk;
FwpaPL nra;ag;gl;Ls;s gp.rh.M.7 Mtzj;jpd; kPjpAs;s
gf;fq;fs; ePjpkd;wj;jpw;F tutiof;f Ntz;Lk; vd;W
kDtpy; $wg;gl;Ls;sJ. epy msit Gj;jfq;fs;
cs;spl;l fpuhk fzf;Ffis xg;gilg;gjw;F mDkjp
Nfhug;gLk; gl;rj;jpy; Nkw;gb Mtzq;fspd; rhd;wpl;l
efy; Nfhhp Nkw;gb mYtyfq;fspy; kD
nra;ag;gl;ljh> me;j tpz;zg;gj;jpd; epiy vd;d>
mt;thW kD jhf;fy nra;ag;gl;Lk; efy;
toq;fg;gltpy;iy vd;gjpy; ePjpkd;wk; jpUg;jp
mile;jhy; kl;LNk Mtzq;fis tutiof;f
miog;ghiz mDg;g Ntz;Lk; vd;W chpikapay;
eilKiw tpjp 75y; Fwpg;gpl;Ls;s epiyapy;>
mt;thwhd mbg;gil tpjpfs; ,k;kDtpy;
gpd;gw;wg;glhj epiyapy; kDjhuh;fspd;
epiyepw;fj;jf;fjy;y vd;W ,e;ePjpkd;wk; KbT
fhz;fpwJ."
3. The relevant portion of the deposition of D.W.1 on 21.03.2022
reads as under:-
gp.th.rh.M.6 Mtzj;jpd; efy; tl;lhr;rpaUf;Fk;>
khtl;l fUt{yk;> fpid fUt{yfj;jpw;F kl;Lk; jhd;
mDg;gg;gl;lJ vd;whYk; thjpfspd; je;ij gQ;rehjd;>
rq;fpypnfhd; MfpnahUf;F mDg;gltpy;iy vd;whYk;
rhpjhd;. gp.th.rh.M.7 Mtzjp[y; rh;nt vz; kw;Wk; nfhg;g[
eltof;if vz; tptuq;fs; vJt[k; ,y;iy vd;why;
rhpjhd;. gp.th.rh.M.7 Mtzjpy; KG Mtzj;jija[k;
jhf;fy; bra;ahky; gf;f vz;.167> 168> 169> 170> 171
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C.R.P(MD)No.2302 of 2022
kl;Lk; jhf;fy; bra;Js;nshk; vd;why; rhpjhd;. nkw;go KG
Mtzj;jija[k; ghh;j;jhy;jhd; cz;ik tptuk; bjhpatUk;
vd;why; rhpjhd;. gp.th.rh.M.7 Mtzj;jp[y; cs;s
gadhspfs; gl;oay; g[y vz;.444/3B1f;FhpaJ vd;whYk;
jhth brhj;Jf;FjpaJ ,y;iy vd;whYk; rhpay;y.
Vdntjhd; ehd; KG nfhg;iga[k; kiwj;Js;nsd; vd;why;
rhpay;y. VdJ epU:gz thf;FK:yj;jpy; uhn$e;jpud; ve;bje;j
rh;nt vz;fis ve;bje;j Mtzk; K:ykhf murhq;fj;jpw;F
gjpt[ bra;J bfhLj;jhh; vd;w tptuj;ij brhy;ytpy;iy
vd;why; rhpjhd;. murhq;fj;jpw;F ,uhn$e;jpud; ve;j tUlk;
gjpt[ Mtzk; vGjp bfhLj;jhh; vd;w tptuk; bjhpa[kh
vd;why; bjhpahJ.
4. The learned counsel for the petitioner submits that the petition
has been filed on the strength of Rule 75 of the Civil Rules on Practice
and submits that an appropriate application should have been correctly
mentioned as Order 13 Rule 10 of CPC.
5. The specific case of the petitioners is that a land in S.No.444/3B
consists 1 acre and 13 cents. It was originally assigned in favour of the
original assignees namely, Selva Nachiyar, (the father of the petitioners
herein), Late.Sangili and Late.Panjunathan. It was later sub divided as
R.S.No.444/3B1 and an extent of 89 cents and balance of land out of 1
acre 13 cents was in R.S.No.444/3B2 and assigned in favour of one
Rajendran.
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C.R.P(MD)No.2302 of 2022
6. It is submitted that the original assignees of 19 cents of land in
R.S.No.444/3B1, sold the entire extent of land by a sale deed dated
03.04.1998 including 1 acre 13 cents, which was assigned to the original
assignees namely, Selva Nachiyar, the petitioners' father, Late.Sangili
and Late.Panjunathan. Therefore, necessity arose for summoning the
records of the Revenue Department pursuant to the evidence given by the
Thasildar, Tiruppavanam, who deposed evidence on behalf of the
defendants.
7. The learned Additional Government Pleader for the respondents
submits that the application was filed to fill up the lacuna in the evidence
long after the evidence was recorded. It is submitted that the intention of
the petitioner is only to delay the proceedings by prolonging the
longevity of the proceedings. It is submitted that Rule 75 of Civil Rules
of Practice contemplates a procedure before the summons can be issued
under Order 16 Rule 16 of C.P.C. It is submitted that before an
application for summon can be issued, the plaintiff is required to issue a
notice in Form-23.
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C.R.P(MD)No.2302 of 2022
8. Reference is made to Rule 75(3) of the Civil Rules of Practice
as per which no Court shall issue summons unless it considers the
production of the original necessary or satisfy that the application for a
certified copy has been duly made and has not been granted. It is
submitted that the Court shall in every case record its reasons in writing
and shall require the applicant to deposit in Court, before the summons is
issued, to abide by the order of the Court, such sum as it may consider
necessary to meet the estimated cost of making a copy of the document
when produced.
9. Reference is made to the decision of the High Court of Andhra
Pradesh in the case of D.Ram Mohan Rao Vs Sridevi Hotels Private
Limited rendered in 2005 (6) ALT 712, wherein, the High Court of
Andhra Pradesh referred to Rule 129 of the Civil Rules of Practice as in
force in Andhra Pradesh which para materia with Rule 75 of Civil Rules
of Practice as applicable to Court in Tamil Nadu. Reference is made to
Paragraph No.19, wherein, it was held as follows:
"19. Admittedly, in the case on hand, the defendant failed
to take any steps for obtaining the certified copies of the
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C.R.P(MD)No.2302 of 2022
documents in question from the concerned officer. As a matter of
fact, his affidavit was totally silent on the said aspect. Though
the learned Counsel for the petitioner submits that it is not
possible for a third party to obtain the certified copies of the
Income-Tax Returns of a particular assessee, I am unable to
accept since unless such an application is made and rejected, it
cannot be assumed that it is impossible to obtain the certified
copies."
10. It is therefore submitted that the application filed by the
petitioner/plaintiff was rightly rejected. It is therefore submitted that the
impugned order does not call for any interference. That apart, it is
submitted that the petitioners/plaintiffs himself also filed an application
for granting a house site and therefore, cannot claim a right based on the
alleged assignment which was made long before. It is submitted that the
legal heirs of Rajendran gifted the land as early as on 03.04.1998 and
therefore, even on that count, the suit itself was barred by limitation.
That apart, it is submitted that the petitioner has made false averments in
the plaint that Selva Nachiyar was daughter of Irulappa Konar and that
she is the wife of Santharaja.
11. By way of rejoinder, the learned counsel for the petitioner
place reliance on the decision of this Court in the case of Chettia
Gounder @ Chettiannan Vs Ganesan, 2013 (6) MLJ 350. Reference is
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C.R.P(MD)No.2302 of 2022
made to Paragraph No.20, which reads as under:
"20. In a civil suit where a document is to be proved, report of an
expert may be brought on record in terms of the provisions of the
Indian Evidence Act. As per Order 13 Rule 9(1) first proviso a(i)
of the Civil Procedure Code, a Court of law is to find out the truth
and a party must be permitted to bring in a document of record if
it is essential for arriving at a fair decision and for establishing
his version of suit claim."
12. I have considered the arguments advanced by the learned
counsel for the petitioner and the learned counsel for the respondent.
13. I do not wish to give any observations on the merits of the case
which has to be decided by the Trial Court after examining the records.
The petitioner is claiming right of the property based on the assignment
made long before. The land in question reportedly fell in S.No.444/3,
which appears to have been sub-divided and portion of the land
measuring an extent of 36 ares out of 82 ares was supposed to have been
assigned in favour of one Rajendran, whose legal heirs are said to have
gifted the land in favour of the respondent on 03.04.1998. It is the case of
the petitioner that the entire extent of land has been gifted contrary to the
assignment after sub division. These are aspects which go into the merits
of the case.
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C.R.P(MD)No.2302 of 2022
14. Order 13 Rule 10 of C.P.C and Order 16 Rule 6 of C.P.C read
as under:
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C.R.P(MD)No.2302 of 2022
Order 13 Rule 10 of CPC Order 16 Rule 6 of C.P.C
Rule10. Court may send for Rule 6. Summons to produce
papers from its own records or document.—
from other Courts.— Any person may be
(1) The Court may of its own summoned to produce a
motion, and may in its discretion document, without being
upon the application of any of summoned to give evidence; and
the parties to a suit, send for, any person summoned merely to
either from its own records or produce a document shall be
from any other Court, the record deemed to have complied with
of any other suit or proceeding, the summons if he causes such
and inspect the same. document to be produced instead
(2) Every application made of attending personally to
under this rule shall (unless the produce the same."
Court otherwise directs) be
supported by an affidavit
showing how the record is
material to the suit in which the
application is made, and that the
applicant cannot without
unreasonable delay or expense
obtain a duly authenticated copy
of the record or of such portion
thereof as the applicant requires,
or that the production of the
original is necessary for the
purposes of justice.
(3) Nothing contained in this
rule shall be deemed to enable
the Court to use in evidence any
document which under the law of
evidence would be inadmissible
in the suit."
15. Under Order 13 Rule 10 C.P.C, the Court may send for papers
from its own records or from other Courts. Thus, Order 13 Rule 10 of
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C.R.P(MD)No.2302 of 2022
C.P.C. is not applicable to facts of the case. On the other hand, Order 16
Rule 6 of C.P.C gives wide powers to the Court to issue summons to
produce documents.
16. Rule 75 of the Civil Rules of Practice reads as under:-
75. Production of records in the custody of a public Officer
other than a Court:-
" (1) A summons for the production of records in the
custody of a public officer other than a Court shall be in Form
No.23 and shall be addressed to the head of the department
concerned and in the case of summons to a District Registrar or
Sub-Registrar or Assurances, it shall be addressed to the
Registrar or Sub-Registrar in whose office or sub-office, as the
case may be, the required records are kept. A summons for the
production of revenue papers kept in any office in a district shall
in all cases be directed to the Collector of the District.
Provided that where the summons is for the production of
Village accounts, including filed measurement books, such
summons shall be addressed to the Tahsildar or to the Deputy
Tahsildar in independent charge as the case may be.
2) Every application for such summons shall be made by a
verified petition setting out (i) the document or documents the
production of which is required. (ii) the relevancy of the document
or documents; and (iii) in case where the production of a certified
copy would answer the purpose. whether application was made to
the proper officer for a certified copy or copies and the result of
such application.
3) No Court shall issue such a summons unless it considers
the production of the original necessary or is satisfied that the
application for a certified copy has been duly made and has not
been granted. The Court shall in every case record its reasons in
writing and shall require the applicant to deposit in Court, before
the summons is issued, to abide the order of the Court, such sum
as it may consider necessary, to meet the estimated cost of making
a copy of the document when produced.
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C.R.P(MD)No.2302 of 2022
4) On production of the documents in obedience to the
summons, the Court, unless it thinks it necessary to retain the
original shall direct a copy to be made at the expense of the
applicant and shall with all convenient speed return the original
retaining the copy.
5) Unless the Court requires the production of the original,
every such summons to a public officer shall stated that he is at
liberty to produce instead of the original, a copy certified in the
manner prescribed by Section 76 of the Indian Evidence Act,
1872.
6) Nothing in the above rules shall prevent a Court of its
own motion from issuing a summons for the production of public
records or other documents in the custody of a public officer if it
thinks it necessary for the ends of justice to do so. The Court shall
in every case record its reasons in writing."
17. Procedure are only hand maids of justice and not mistress of
law. The Trial Court is required to come to a correct conclusion of facts
based on the records that are available before it and documents available
with the various authorities which can summoned for being perused and
considered.
18. In my view, there is no harm in summoning the records as
Order 16 Rule 6 of C.P.C. specifically empowers Court to issue
summons to produce documents.
19. I am therefore inclined to allow this Civil Revision Petition by
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C.R.P(MD)No.2302 of 2022
setting aside the impugned order by allowing the prayer of the petitioner
in I.A.No.6 of 2022. Consequently, the learned District Munsif Cum
Judicial Magistrate, Thiruppuvanam, Sivagangai District is directed to
issue suitable summons to the authority concerned to produce the
relevant documents called for and thereafter, proceed to pass final
judgment and decree on merits within a period of 6 months from the date
of receipt of copy of this order. Needless to state that the petitioner shall
pay for such summons in accordance with the Rules.
20. The present Civil Revision Petition stands allowed with the
above observations. No costs. Consequently, Connected miscellaneous
petition is closed.
10.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
To
1.The District Munsif Cum Judicial Magistrate,
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C.R.P(MD)No.2302 of 2022
Thiruppuvanam, Sivagangai District
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
C.SARAVANAN,J.
SN
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C.R.P(MD)No.2302 of 2022
C.R.P(MD)No.2302 of 2022
10.04.2023
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