Madras High Court
Kaliyaperumal vs Latha on 19 October, 2024
C.R.P.(PD).No.2553 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.10.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.2553 of 2024
and C.M.P.No.13375 of 2024
1. Kaliyaperumal
2. Thangamani .. Petitioners
Versus
1. Latha
2. Pushpalatha .. Respondents
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the impugned order, dated 22.03.2024, made in
I.A.No.10 of 2024 in O.S.No.84 of 2012 on the file of the Additional
District Munsif Court, Jayankondam and allow this Civil Revision Petition.
For Petitioners : Ms.Chenthoori Pugazhendhi,
for Mr.K.Balu
For Respondents : Mrs.Senthil Vadivu, for R1
: No Appearance for R2
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1/10
C.R.P.(PD).No.2553 of 2024
ORDER
This Civil Revision Petition challenges the order passed by the
learned Additional District Munsif at Jayankondam in I.A.No.10 of 2024 in
O.S.No.84 of 2012, dated 22.03.2024.
2. The civil revision petitioners are the first and second defendants in
the suit. The contesting respondents are the plaintiffs. For the sake of
convenience, the parties are referred to as plaintiffs and the defendant Nos.1
and 2.
3. The plaintiffs presented O.S.No.84 of 2012 seeking for a relief of
partition and separate possession. It is the case of the first plaintiff that her
husband one Ramamoorthy is the son of Kaliyaperumal and the brother of
Thangamani. The second plaintiff is said to be the daughter of
Ramamoorthy. This aspect on the paternity of Ramamoorthy is denied by
the civil revision petitioner. However, I am not entering into that issue as it
is irrelevant for the purpose of disposal of this revision. Pleading that the
suit properties are the ancestral properties and that Ramamoorthy has a
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share in the same, the plaintiffs came forth with the suit for the aforesaid
relief.
4. On being served with the summons, the defendants filed a detailed
written statement. According to them, Ramamoorthy was given to evil ways
and therefore, it brought disrepute to the members of the family. Therefore,
on 30.05.1990, the properties were divided amongst the family members
and Ramamoorthy received a sum of Rs.1,00,000/- in full quit of his rights
in and over the suit properties. An another plea was raised as regarding the
document said to have been executed on 12.10.1987. That too is said to be
a partition list. However, despite Ms.Chenthoori Pugazhendhi vehemently
contends that the parties pleaded about the said document in the written
statement, I could not find even a whisper about the same.
5. When the matter was listed for trial, the defendant Nos.1 and 2 took
out an application in I.A.No.10 of 2024 seeking the permission of the Court
under Order VIII Rule 1A(3) of the Code of Civil Procedure to permit them
to receive the said document. This application was numbered as I.A.No.10
of 2024.
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6. The learned Judge issued notice in the said application and
received a counter-affidavit from the plaintiffs. After hearing the arguments
of both the sides, he proceeded to dismiss the said petition. Hence, this
revision at the instance of the defendant Nos.1 and 2.
7. When the matter came up for admission, I directed Ms.Chenthoori
Pugazhendhi to issue notice on the learned Counsel who represents the
plaintiffs in the Court below. Notice was also served through the process of
Court as well as privately. She informed me that the learned Counsel who
represents the plaintiffs in the Court below, Mr.R.Suresh Kumar, had
instructed her that he had briefed Mrs.Senthil Vadivu to appear and oppose
the revision. The matter was adjourned to hear Mrs.Senthil Vadivu.
Mrs.Senthil Vadivu appears today and informs the Court that the plaintiffs
informed her that she need not represent them before this Court. Therefore,
I heard Ms.Chenthoori Pugazhendhi in the revision.
8. Ms.Chenthoori Pugazhendhi draws my attention to the paragraph
No.4 of the written statement filed by the defendants as early as on
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03.10.2012. She urges that the documents that are sought to be adduced
under the present application, have been specifically pleaded by her in the
said paragraph. Hence, the Court below should have allowed the
application. She adds that the position of law is settled by the judgment of a
Full Bench of the Andhra Pradesh High Court in Chinnappareddigari
Pedda Muthyalareddy Vs. Chinnappareddigari Venkatareddy and Ors.,
AIR 1969 Andhra Pradesh 242, in particular, paragraph No.34 and by a
judgment of the Supreme Court in Yellapu Uma Maheswari and Anr. Vs
Buddha Jagadheeswararao and Ors., (2015) 16 SCC 787. She urges that
the order passed by the learned Trial Judge requires interference.
9. I have carefully considered the arguments of Ms.Chenthoori
Pugazhendhi and have gone through the records.
10. Ms.Chenthoori Pugazhendhi is correct that the defendants have
specifically pleaded as regards the document, dated 30.05.1990. However,
there is no plea in the written statement regarding the other document, dated
10.10.1987 which the defendants want to exhibit. In the absence of a plea,
no amount of evidence, however sterling it may be, can be looked into by
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the Court. That being the situation, I am not in a position to interfere with
the order insofar as the rejection of the document, dated 10.10.1987 is
concerned.
11. However, with respect to the document, dated 30.05.1990, a
specific plea was raised by the defendants as early as in the year 2012. No
reply seems to have been filed by the plaintiffs to the said plea. I should
hasten to add that a non-filing of a reply statement is not being held against
the plaintiffs. I am referring to the said fact only in order to point out that
the plaintiffs will not be taken by surprise by filing of the said document
during the course of trial. Where a plea exists, the Court must give full
opportunity to the party to substantiate the said plea.
12. The Code of Civil Procedure is not a Procrustean bed to punish a
party for not having approached the Court in time. It is a legislation of
fairness and that requires a uniform flow in the completion of a trial. The
litigation having started in the rural areas of Tamil Nadu, I cannot expect a
litigant to be as vigilant about the records as would be the case in the case of
Metropolitan cities.
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13. The defendants gave instructions to their lawyer and their lawyer
also took a plea that Ramamoorthy received a sum of Rs.1,00,000/- as early
as on 30.05.1990 and moved away from the family. That being the
situation, the provision relating to leave for receipt of records deserves a
liberal construction. Order VIII Rule 1A(3) of the Code of Civil Procedure
came in by way of an amendment to the Code of Civil Procedure in the year
2022. Prior to the said provision, there was a provision under Order XIII
Rule 2 enabling the Court to condone the delay in filing the documents.
14. The Parliament, in its wisdom, removed the provision for
condonation of delay and substituted it with a provision to grant leave to
receive documents under Order VIII Rule 1A(3). The words that are used
by the Parliament is "to grant leave" and not "to condone the delay". When
it comes to granting leave, it has always given a more liberal construction
than when a Court deals with an application to condone the delay.
15. Now, I turn to the judgments referred to by Ms.Chenthoori
Pugazhendhi namely, Chinnappareddigari Pedda Muthyalareddy's case
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(cited supra) and Yellapu Uma Maheswari's case (cited supra). The view
taken by a Full Bench of the Andhra Pradesh High Court in
Chinnappareddigari Pedda Muthyalareddy's case (cited supra) is that an
unregistered partition list cannot be looked into as a source of title.
However, the said document can be utilised by the Court in order to point
out the severance of the status between the parties. The defendants cannot
obviously use the said document, dated 30.05.1990 for the purpose of
proving their title to the suit schedule mentioned property. They can
certainly rely upon it in order to show that Ramamoorthy had moved away
from the joint family. It is pertinent to take note here that the view taken by
the Andhra Pradesh High Court referred to above find acceptance at the
hands of the Supreme Court in Yellapu Uma Maheswari's case (cited
supra) (refer paragraph No.16).
16. Ms.Chenthoori Pugazhendhi has produced a photostat copy of the
document, dated 30.05.1990. A perusal of the document shows that it is not
an unstamped document, but, bears a stamp on the same. Had it been an
unstamped, I would not have entertained the revision since an unstamped
document cannot be looked into for any purpose vide Section 35 of the
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Indian Stamp Act, 1899. If it is an unregistered document, though under
Section 17 of the Registration Act, 1908, it requires a registration, it can still
be used for collateral purpose.
17. In the light of the above discussion, this Civil Revision Petition
stands partly allowed. The order passed by the learned Additional District
Munsif Court, Jayankondam is set aside. The application to grant leave
stands allowed. The defendant Nos.1 and 2 will be entitled to produce the
document, dated 30.05.1990 alone. The revision, insofar as the document,
dated 10.10.1987 is concerned, stands rejected. No costs. Consequently,
connected miscellaneous petition is closed.
19.10.2024
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
To
The Additional District Munsif Court,
Jayankondam.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.
grs
19.10.2024
https://www.mhc.tn.gov.in/judis
