Madras High Court
Veerammal @ Chinnammal vs Veerammal on 16 November, 2015
Author: T.Mathivanan
Bench: T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.11.2015
CORAM
THE HON'BLE MR.JUSTICE T.MATHIVANAN
CRP(NPD)(MD)No.1426 of 2015
and M.P.(MD) No.1 of 2015
Veerammal @ Chinnammal : Petitioner/Defendant
Vs.
Veerammal : Respondent/Plaintiff
Prayer : Civil Revision Petition is filed under Article 227 of the
Constitution of India, praying to set aside the Fair and Decreetal order
dated 17.04.2015 in I.A.No.169 of 2015 in O.S.No.127 of 2009 on the file of
District Munsif Court, Kulithalai.
!For Petitioner : Mr.R.Murali
^For Respondent : Mr.K.Gokul
:ORDER
The fair and decreetal order dated 17.04.2015 and made in I.A.No.169 of 2015 in O.S.No.127 of 2009 on the file of the learned District Munsif, Kulithalai are under challenge in this revision.
2.The revision petitioner herein is the defendant in the suit, whereas the respondent is the plaintiff.
3.It is revealed from the records that the suit in O.S.No.127 of 2009 has been filed by the respondent/plaintiff as against the revision petitioner/defendant, seeking the relief of permanent injunction. The revision petitioner/defendant has contested the suit by filing the written statement. It is also revealed from the records that the revision petitioner had earlier filed a suit as against the respondent/plaintiff in O.S.No.185 of 2009. That suit was also contested by the respondent/plaintiff.
4.After formulation of necessary issues in O.S.No.127 of 2009, the trial was commenced and the respondent's son was examined as P.W.1. While so, the FMB plan in respect of the suit property was produced through him and marked as one of the documents on behalf of the respondent/plaintiff.
5.It is the contention of the revision petitioner/defendant that her property has been comprised in S.F.No.1143/1 of Sembiyanatham Village. In the present suit, the respondent/plaintiff has claimed that a portion of property in S.F.No.1143/1 has been subdivided as S.F.No.1143/7 and that it is situated on the east of S.F.No.1143/1. As afore stated the FMB Plan relating to S.F.No.1143 of Sembiyanatham Village was produced through P.W.1. It is also the contention of the revision petitioner that the F.M.B. Plan produced by him would go to show that there is no such sub-division as S.F.No.1143/7. Since the FMB Plan produced by the revision petitioner/defendant does not contain the so called sub-division S.F.No.1143/7 on the eastern side of S.F.No.1143/1, she developed apprehension that the respondent/plaintiff might have fabricated the revenue records with an intention to grab her property. Only for that purpose, she has come forward with an application in I.A.No.169 of 2015 under Rule 76 of Civil Rules of Practice read with Section 151 of the Code of Civil Procedure, to send for the original FMB Plan in respect of S.F.No.1143 of Sembiyanatham Village, which is kept and maintained by the revenue department for the purpose of finding out the genuineness attached to FMB Plan produced by the revision petitioner/defendant and respondent/plaintiff.
6.This petition was contested by the respondent/plaintiff by filing counter statement. After hearing both sides, the learned Trial Judge has proceeded to allow the petition partly without costs. The operative portion of the impugned order dated 17.04.2015 reads as under:
?In result this petition is allowed in part that a certificate issued to the petitioner to enable him to obtain certified copy of hand drawing FMB plan for S.F.No.1143 and its sub-division for 1141/1 & 1143/7 of sembiyanatham village No.75 separately on payment of proper fee by the petitioner within three working days from the date of receipt of the certificate, on production of this Court's certificate to the Tahsildar, Kadavoor. Further the Tahsildar, Kadavoor is requested with direction to issue hand drawing FMB within next three working days from the date of receipt of the certificate to the petitioner. Regarding other reliefs, to send for and deposing evidence, the petition is dismissed.? This order dated 17.04.2015 has been challenged in this revision.
7.Mr.R.Murali, learned counsel for the petitioner has submitted that the operative portion of the order itself seems to be ambiguous and the order itself did not reflect the remedial measure which could be provided to the petitioner. Since the order itself is not clear and open to different interpretations the learned counsel for the revision petitioner has submitted that the impugned order was deserved to be set aside and the original FMB Plan relating to S.F.No.1143 of Sembiyanatham Village ought to be sent for from the office of the Tahsildar, Kadavur and to direct the concerned officer who is bringing the document to give evidence in respect of the document.
8.Mr.T.Gokul, learned counsel for the respondent has argued that as requested by the petitioner, the relief which was sought for was granted by the trial Court and since the purpose of the petition was fully served, there was no need to disturb the order of the trial Court.
9.This Court has perused the averments of the grounds of revision along with the impugned order.
10.It is significant to note here that in paragraph 6 of the affidavit filed in support of I.A.No.169 of 2015, the revision petitioner has stated in clear terms that the original FMB in respect of S.F.No.1143 of Sembiyanatham Village, which has been kept and maintained by the revenue department is required to be sent for and that if the FMB sketch in respect of S.F.No.1143 is brought to the Court, the genuineness attached to the F.M.B. plan produced by the petitioner as well as by the respondent could be easily ascertained, compared and clarified with regard to the sub-division said to have been effected in respect of S.F.No.1143.
11. In this regard it is imperative on the part of this Court to extract the provisions of Rule 75 of Civil Rules of Practice. It enacts 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 a Sub-Registrar of Assurances, if 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 field 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 cases were the production of a certified copy would answer the purpose, whether application was made to the proper officer for a certified copy of 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.
(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 state 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.?
12.From the above context, it is thus made clear that the provisions of Rule 75 of Civil Rules of Practice are very much relevant insofar as this case is concerned and the revision petitioner ought to have filed the application only under Rule 75 of Civil Rules of Practice instead of invoking the provisions of Rule 76 of Civil Rules of Practice. Sub Rule (3) of Rule 75 contemplates that no court shall issue such a summons unless it considers the production of the original necessary. Sub Rule (6) also says that 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 is also under the obligation to record its reasons in writing for causing production of the revenue records from the file of Public Officer. In view of the above fact, this Court is of the considered view that the impugned order is liable to be set aside.
13.In the result, this Civil Revision Petition is allowed and the impugned order dated 17.04.2015 is set aside. The application in I.A.No.169 of 2015 in O.S.No.127 of 2009 on the file of the learned District Munsif, Kulithalai is ordered. The learned District Munsif, Kulithalai is directed to send for the document which is prescribed in the petition from the file of the Tahsildar, Kadavur Taluk through a responsible officer and the officer who is bringing the required document viz., F.M.B. Plan in respect of S.F.No.1143 of Sembiyanatham Village shall also be directed to depose with regard to the F.M.B. Plan which may be produced by him. The District Munsif, Kulithalai is also directed to dispose of O.S.No.127 of 2009 within three months from the date of receipt of a copy of this order. However, there shall be no order as to the costs.
To The District Munsif, Kulithalai..