Madras High Court
Mangalam Ammal vs Jayasingh on 1 July, 2021
C.R.P(PD)(MD)No.757 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 30.04.2021
Pronounced on : 01.07.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRP PD(MD).No.757 of 2021
1.Mangalam Ammal
2.Kirubavathy
3.Jayanthi Jeevarathinam
4.Ponmani
5.Goresh
6.Bala
7.Daniel Syrus : Petitioners
Vs.
1.Jayasingh
2.Dhanasingh
3.Albert
4.Jayapal : Respondents/Defendants
PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of
India, to set aside the docket order dated 25.04.2019 and direct the District
Court, Thootukudi to number the unnumbered O.S.No....... of 2019.
For Petitioners : Mr.M.P.Senthil
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https://www.mhc.tn.gov.in/judis/
C.R.P(PD)(MD)No.757 of 2020
ORDER
The Civil Revision Petition is directed against the order of retuning the plaint in unnumbered suit in O.S.No... of 2019 dated 25.04.2019 on the file of the District Court, Thoothukudi.
2.The revision petitioners are the plaintiffs. The first plaintiff is the mother of plaintiffs 2 to 7. One Rathinasingh is the husband of the first plaintiff and father of the plaintiffs 2 to 7. The plaintiffs, by alleging that the suit properties were belonging to the parents of defendants 1 to 4 and said Rathinasingh, has filed the suit for partition claiming 1/5 share before the District Court, Thoothukudi. The learned District Judge has returned the plaint listing out 6 defects and the plaintiffs have represented the same after rectification. The learned District Judge has again returned the plaint on 25.04.2019 listing out the following 2 defects which are now under challenge;
(I) Plaintiffs signature and the Advocate signature are to be obtained in duplicate plaint.
(ii) Full fledged encumbrance certificate for the suit properties is to be produced.
3.Let us first consider the 1st return with respect to duplicate plaint. An interesting question has now come up for consideration as to whether duplicate plaint 2/10 https://www.mhc.tn.gov.in/judis/ C.R.P(PD)(MD)No.757 of 2020 should contain the signature of all the plaintiffs and their Advocates. Section 26 of the Code of Civil Procedure contemplates that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Similarly Order IV Rule 1 also contemplates that every suit shall be initialed by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf. Order IV Rule 1 reads as follow:-
''1) Suit to be commenced by plaint.
(1)Every suit shall be instituted by presenting a (Plaint in duplicate to the Court) or such Officer as it appoints in this behalf.
(2)Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.
(3)The Plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2)''
4.A combined reading of Section 26 of CPC and Order IV Rule 1 CPC, make it clear that the institution of suit shall be by presenting a plaint in duplicate and such plaint shall comply with Rules contained in Orders VI and VII of CPC so far as they are applicable. It is pertinent to mention that Order IV Rule 1(3) CPC, mandates that if all the requirements specified under Sub rules 1 and 2 are not compiled with, the plaint shall not be deemed to have been duly instituted. Order VI CPC deals with the 3/10 https://www.mhc.tn.gov.in/judis/ C.R.P(PD)(MD)No.757 of 2020 pleadings generally and Rule 1 says that the ''pleading'' shall mean plaint or written statement. Now it's time to consider, what is the meaning of the word “Duplicate”. As per Oxford Dictionary :-
As adjective – having two corresponding or identical parts.
As Noun - One of two or more identical things
As Verb -Multiply by two, double
Origin:-
From Latin duplicat-' doubled', from the verb duplicare, From duplic- “ two Fold”
5.Considering the above, it is clear that the word ''duplicate'' cannot be equated with ''copy''. It is pertinent to mention that Order V Rule 2 mandates that every summons shall be accompanied by a copy of the plaint. Similarly Order VII Rule 9 contemplates that where the Court orders that the summons be served on the defendants, it has to direct the plaintiff to present as many copies of the plaint, as there are defendants within seven days from the date of such order along with requisite fee for service of summons on the defendants.
6.In the above 2 provisions, the copy of the plaint alone is referred and as such, it is clear that the duplicate plaint shown in Order IV Rule 1 and the copy of the plaint referred in Order V Rule 2 and Order VII Rule 9 are entirely different. 4/10 https://www.mhc.tn.gov.in/judis/ C.R.P(PD)(MD)No.757 of 2020
7.Moreover it is pertinent to note that Order IV Rule 1, does not say that the plaint and duplicate plaint are to be presented, but on the other hand, the ''plaint in duplicate'' is to be presented.
8.Order VI Rule 14 CPC states that every pleading shall be signed by the party and his pleader and Order VI Rule 15 CPC contemplates that every pleadings shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
9.Considering the above provisions along with Order VI Rule 1, the plaint has to be signed by the parties and his pleader and the same has to be verified. The combined reading of Order IV Rule 1 along with dictionary meaning for the word 'duplicate' referred above, we can easily infer that two plaints are to be presented and one of the plaint will be treated as original and the other as duplicate.
10.One other important provision to be noted here is Order VII Rule 11 of CPC. It is pertinent to note that Clause (e) and (f) Rule 11 of Order VII were added by the Amendment Act 46 of 1999, with effect from 01.07.2002 and that after amendment, Order VII Rule 11 contemplates that the plaint shall be rejected in either of the contingencies mentioned in Rule 11 viz., if the plaint does not disclose a cause 5/10 https://www.mhc.tn.gov.in/judis/ C.R.P(PD)(MD)No.757 of 2020 of action; or when relief claimed is undervalued and the plaintiff has failed to correct the valuation, despite order passed by the Court within a time fixed by the Court to carry-out amendment in the valuation clause; or where the plaintiff has failed to pay deficit stamp duty/Court fees, within such time as fixed by the Court; or where the suit appears from the statement in the plaint to be barred by any law; or where plaintiff has not filed plaint in duplicate; or where the plaintiff has failed to comply with the provisions of Rule 9.
11.In view of the Rule 11 Clause (e), the plaint is liable to be rejected, if the plaintiff has not filed the plaint in duplicate under Order VII of Rule 11 of CPC, which makes it clear that filing of the plaint in duplicate is mandatory.
12.Uttaranchal High Court, in the case of Ambrish Kumar Agarwal Vs. Thakur Dass in W.P.No.2226 (MS) of 2015 dated 08.09.2015 while dealing with the Plaintiff's failure to carry out the amendment in the duplicate plaint, has held that if Order VII Rule 11 (e) CPC is read with Order IV Rule 1 and Order VI Rule 18 CPC, the only interpretation would be that if plaint is not filed in duplicate and plaintiff has failed to file duplicate copy of the plaint within such extended time, as the Court directs, Court may reject the plaint for non-compliance of Order IV Rule 1 CPC, since, filing of plaint without duplicate copy shall not be deemed to be duly instituted as envisaged under Sub-rule 3 of Rule 1 of Order IV CPC. By holding so, the High 6/10 https://www.mhc.tn.gov.in/judis/ C.R.P(PD)(MD)No.757 of 2020 Court has directed the trial Court to give a reasonable time to the plaintiff to carry-out the amendment in the duplicate plaint and in case, if the plaintiff fails to carry-out the same, the trial Court shall be at liberty to pass appropriate orders, in accordance with law.
13.In the above decision, it is made clear that all the requirements to be followed and to be complied with for the plaint are also applicable to the duplicate plaint. Considering the above, the returning of the plaint requiring the plaintiffs and their counsel to subscribe their signature cannot be found fault with.
14.Now, coming to the encumbrance certificate, as already pointed out, the suit is filed for partition. The specific case of plaintiffs is that the properties were owned by deceased Kirubainayagam and his wife Poomaniyammal, who are the parents of defendants 1 to 4 and the deceased Rathinasingh, who is the husband of the first plaintiff and father of the plaintiffs 2 to 7. The plaintiffs have produced the original sale deed and certified copy of the release deed executed by the daughters of Kirubainayagam and Poomaniyammal along with death certificate and the legal heirship certificate of Rathinasingh.
15.An Encumbrance certificate denotes that a particular property is free from any monetary or legal liability such as a mortgage or a loan. It is a certificate of 7/10 https://www.mhc.tn.gov.in/judis/ C.R.P(PD)(MD)No.757 of 2020 assurance that the concerned property is free from any legal or financial liability. Moreover the certificate only reflects those transactions and documents that have been registered with the Registrar Office.
16.The learned counsel for the revision petitioner would contend that the encumbrance certificate for the schedule properties are totally unnecessary and irrelevant, especially in a suit for partition, tittle is not going to be decided unless and until the defendant denies the plaintiff's right, tittle over the property.
17.Order VII Rule 14 contemplates that where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall produce the same in Court when the plaint is presented by him. In the present case, as already pointed out, the plaintiffs have produced the original and registration copies of the tittle deeds and they have not relied on the encumbrance certificate to show the transactions. Considering the nature of the suit, relationship between the parties and the documents filed along with the plaint, direction for production of full fledged encumbrance certificate for all the suit properties is not at all necessary and that too, at the stage of numbering the suit. No doubt, pending suit, the Trial Judge is having power and jurisdiction to compel the parties to produce the documents which are necessary for deciding the case.
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18.Considering the above, the order returning the plaint for production of encumbrance certificate is not proper and is not good in law and as such the, same is liable to be set aside.
19.In the result, the Civil Revision Petition is partly allowed and the return with respect to duplicate plaint is liable to be sustained and the order of return with respect to the production of encumbrance certificate is liable to be set aside. The revision petitioners/plaintiffs are directed to represent the plaint in duplicate and on such re-presentation, the learned District Judge is directed to take it on file, if it is otherwise in order. The Registry is directed to return the original plaint filed along with the revision petition to the learned counsel for the revision petitioners, retaining a copy of the same. No Costs.
01.07.2021 Index : Yes/No Internet : Yes/No tta Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To learned Principal District Judge, Thoothukudi District 9/10 https://www.mhc.tn.gov.in/judis/ C.R.P(PD)(MD)No.757 of 2020 K.MURALI SHANKAR, J.
tta CRP PD(MD).No.757 of 2021 01.07.2021 10/10 https://www.mhc.tn.gov.in/judis/