Madras High Court
Pr.Palaniappan vs T.R.Rathineswaran on 20 April, 2009
Bench: D.Murugesan, C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.04.2009 CORAM : THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE C.S.KARNAN O.S.A. No.322 of 2008 and M.P.Nos.1 to 3 of 2008 1. PR.Palaniappan 2. PR.Veerappan .. Appellants -vs- 1. T.R.Rathineswaran 2. RM.Visalakshi 3. RM.Periakaruppan 4. RM.Meyyammai (Minor) 5. PR.Alagappan .. Respondents Appeal against the order dated 30.09.2008 passed by this Court in O.A.No.4281 of 2008 in C.P.No.710 of 2002. For Appellants : Mr.PL.Narayanan For Respondents : Mr.V.T.Gopalan, S.C. For Mr.P.Senthil Kumar for R-1 : No appearance for others J U D G M E N T
(Delivered by D.MURUGESAN, J.) The appellant filed a suit for permanent injunction restraining the first and second defendants, their agents and servants, any person, every person, claiming under them either directly or indirectly from dealing with the suit properties morefully described in the Schedule. Apparently, the suit was laid based on two sale deeds dated 8.12.1960 and 20.2.1961. While the two sale deeds were filed in support of the plaint under Order VII Rule 14(1) of C.P.C., the appellant had only filed photo copies of those two sale deeds. The respondents approached this Court by filing two applications in A.Nos.4148 and 4149 of 2003. In Application No.4149 of 2003, the respondent had prayed for a direction to the appellants/plaintiffs to produce original sale deeds dated 8.12.1960 and 20.2.1961. There were certain allegations made in respect of those documents, which we are not inclined to go into at this stage, as any discussion and finding may affect the rival stands of both the appellants and respondents in the suit. The said application was opposed on the ground that the appellants had filed certificate copies of the sale deeds, which are admissible piece of evidence. Nevertheless, by order dated 21.6.2004, the said application was ordered on the following direction:-
"2.This is an application taken out to direct the plaintiff/respondent to produce the original sale deed dated 8.12.1960 and 20.2.1961. The learned counsel appearing for the plaintiff submits that he has got reasonable apprehension that the defendant will try to snatch away or destroy these documents on the way to court and prays sufficient police protection. Considering the sensitive nature of the case, the Commissioner of Police, Chennai Metropolitan City is directed to give necessary police protection to the learned counsel for the plaintiff Mr.PL.Narayanan from 8.00 a.m. to 28.6.2004 till 6.00 p.m. on the same day and the police protection should be available throughout to him on that day."
2.On the ground that the said direction was not complied with and the appellant did not produce the two sale deeds before this Court, the respondents filed another application in A.No.4281 of 2008. It is alleged in the affidavit filed in support of the said petition that the appellants/plaintiffs had approached the Court with unclean hands and the plaint documents are fabricated and bogus. The earlier direction to produce those documents were also not complied with clearly indicating that the original sale deeds are fabricated and bogus. The said petition was opposed by filing a counter-affidavit, wherein it is stated that pursuant to the direction, the sale deeds were produced before the learned Master and the same were inspected by the applicants' then counsel. On considering the rival claims, the learned Judge, by order dated 30.09.2008, had directed the production of those original sale deeds in compliance of the earlier order dated 21.06.2004 within one week from the date of the said order. It is against the said order, the present appeal has been preferred.
3.We have heard Mr.PL.Narayanan, learned counsel appearing for the appellants and Mr.V.T.Gopalan, learned senior counsel appearing for the respondents.
4.In our considered view, the appellants must succeed in the appeal for more than one ground. It is the specific contention of the respondents that the earlier order dated 21.6.2004 was not complied with, as the appellants did not produce the original sale deeds before the Court. Though a specific averment was made by the respondents in the affidavit filed in support of the petition, the same was not only disputed, but also a specific averment was made by the appellants/plaintiffs that the documents were produced before the learned Master, which were inspected by the applicants' then counsel. The said averment made by the appellants has not been further disputed by the respondents herein.
5.Mr.V.T.Gopalan, learned senior counsel, would however submit that the purport of the order dated 21.6.2004 is not for a mere production of the sale deeds, but for filing those documents into Court. In this context, we may refer to the earlier order dated 21.6.2004. The application was taken out to direct the plaintiffs to produce those sale deeds. The learned Judge had directed the police protection for the counsel for the plaintiffs to enable them to produce those documents before the Court, as there was an apprehension on the part of the plaintiffs that the defendants may try to snatch away or destroy those documents. Neither in the application nor in the direction, we could see that the appellants/plaintiffs were ordered to file those documents into the Court. Therefore, the contention that failure on the part of the appellants to file those documents into Court is unacceptable, especially in the wake of specific uncontroverted averment made in the counter that those documents were produced and were inspected by then counsel for the respondents.
6.Coming to the affidavit filed in support of the application in A.No.4281 of 2008, as we have mentioned, the two basic averments for such application are that the plaint documents in question are forged and bogus and the appellants had failed to comply with the earlier direction. Except those averments, it is not pleaded that those documents are necessary for perusal in order to file an application to reject the plaint. In the absence of any such pleadings, the learned Judge had proceeded to order the petition on the ground that the production of these documents are necessary for the respondents to file an application to reject the plaint, which, in our considered view, cannot be ordered. In this context, it may be useful to refer the judgment of the Supreme Court in Union of India v. E.I.D. Parry (India) Ltd. [AIR 2000 SC 831].
7.Mr.V.T.Gopalan, learned senior counsel appearing for the respondents would submit that in terms of Order VII Rule 14(1) of the amended Civil Procedure Code, in the event the plaintiff sues upon a document or relies upon a document in his possession, he shall enter such documents in a list and also shall produce it in Court when the plaint is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the plaint. Hence, it is mandatory for the plaintiffs not only to refer those documents in the list of documents, but also to produce the original documents in Court. In the event, such documents are not filed, certainly the defendants would be entitled to maintain the application for production of such documents in Court.
8.We have carefully considered the said submission and we are unable to agree with the same. Sub Rule 3 of Rule 14 under Order VII contemplates that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. A combined reading of Sub Rules (1) and (3) of Rule 14 under Order VII would show that the production of documents is not mandatory for the plaintiff and those documents may be permitted to be produced, of course, by the leave of the Court at a later point of time, i.e. at the hearing of the suit. Of course, when the plaintiff approaches this Court for leave based on certain documents, it is for him to produce those documents and if those documents are not produced, then he will face the consequences. That does not mean that the defendant can, by an application, compel the plaintiff to produce the documents, which are in possession of the plaintiff, invoking Order VII Rule 14(1) C.P.C. In fact, the counter-affidavit filed by the appellants/plaintiffs in the earlier application in 4149 of 2003, it is stated that they have filed the photo copies of the original, necessarily meaning thereby that they are in possession of the original documents. There appears to be some apprehension on the part of the appellants that in the event those documents are filed into the Court, they may be tampered with. Therefore, they are withholding the documents. In the event those documents are filed into Court at a later point of time, i.e. at the time of trial of the suit, it is open to them to convince the Court as to whether those documents are to be filed or not and it is equally open to the defendants also to oppose such documents on all available fours. Therefore, we are of the opinion that in exercise of the provision of Order VII Rule 14(1) C.P.C., the defendants cannot compel the plaintiffs to file certain documents, which are the basis for the plaint, as the said production is only directory and cannot be construed to be one of mandatory, in the wake of Sub Rule 3 of Rule 14 under Order VII.
9.Though respective counsel had argued much on the impersonation of one C.T.Nachiappan, the first defendant, and fabrication of the two sale deeds in question, we are not inclined to express any opinion, as already stated, as the same would affect the rival contentions of the parties in the suit. For the above two grounds, which we have relied upon, we are inclined to allow the appeal. Accordingly, the appeal is allowed and the impugned order is set aside. No costs.
(D.M.,J.) (C.S.K.,J.) 20.04.2009 Index : Yes Internet : Yes sra D.MURUGESAN, J.
and C.S.KARNAN, J.
(sra) O.S.A.No.322 of 2008 20.04.2009