Madras High Court
Chettia Gounder @ Chettiannan vs Ganesan on 4 June, 2013
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 04.06.2013 Coram The Honourable Mr. Justice M. VENUGOPAL C.R.P.PD. No.1329 of 2010 and M.P. No.1 of 2010 Chettia Gounder @ Chettiannan .. Petitioner/Defendant ..Vs.. Ganesan .. Respondent/Plaintiff Civil Revision Petition filed against the fair and decretal order dated 14.12.2009 passed in I.A. No.305 of 2009 in O.S. No.376 of 2005 on the file of the Additional District Munsif Court, Tiruchengode. For Petitioner : Mr. N. Manoharan For Respondents : Mr. M.S. Palaniswamy O R D E R
The Petitioner/Defendant has filed the present Civil Revision Petition as against the order dated 14.12.2009 in I.A. No.305 of 2009 in O.S. No.376 of 2005 passed by the Learned Additional District Munsif, Tiruchengode.
2. The Learned Additional District Munsif, while passing the order in I.A. No.305 of 2009 in O.S. No.376 of 2005 on 14.12.2009, has among other things categorically observed that the Petitioner (Revision Petitioner/Defendant) has not denied his signature in Ex.A1 pronote and further, he has not stated that in Ex.A1 pronote, the Respondent/ Plaintiff's signature is seen/found. Further, no explanation has been offered by the Petitioner (Revision Petitioner/Defendant) that the documents, which are sought to be summoned, contain the Respondent/Plaintiff's signature and it is not explained as to how the documents mentioned in the petition (whether it covers within the date mentioned therein) will help to prove the case of the Revision Petitioner/Defendant and also, the documents sought to be summoned are not disputed documents and consequently, dismissed the application without costs.
3. The Learned counsel for the Petitioner/Defendant submits that the trial Court passed the impugned order in I.A. No.305 of 2009 in O.S. No.376 of 2005 on 14.12.2009 against law, weight of evidence and all probabilities of case.
4. Further, it is the submission of the learned counsel for the Petitioner/Defendant that the Petitioner/Defendant had financial transaction with Sri Bakiyalakshmi Finance and dues to the Finance were settled and some blank pronotes were not returned and the said pronotes were misused to file the present suit.
5. Advancing his arguments, it is the submission of the learned counsel for the Petitioner/Defendant that the Petitioner/Defendant produced some documents where it has been written in pencil "Keeral Chettiya gounder", which would point out that the Respondent/Plaintiff was in the habit of getting blank pronotes and in order to prove the said fact, the documents mentioned in I.A. No.305 of 2009 are necessary to prove the version/project the case of the Petitioner/Defendant.
6. The Learned counsel for the Petitioner/Defendant urges before this Court that the comparison of the documents could be made only with the help of admitted signature. Since the documents sought for in I.A. No.305 of 2009 are contemporaneous in nature, the same are required to be summoned by the Court of law in the interest of justice to arrive at a just and fair conclusion/finding in the main suit.
7. The Learned counsel for the Petitioner/Defendant invites the attention of this Court to the evidence of P.W.1 (Cross-examination) wherein the Respondent/Plaintiff has deposed before the trial Court that in the three blank pronotes shown to him do not belong to him and the signature found in the pronotes and the signature found in the leave letters of his office can be compared with, for which he has no objection.
8. It is the submission of the learned counsel for the Respondent/Plaintiff that as per the Negotiable Instruments Act, if the debtor has affixed his signature and thumb impression in the pronote, the holder of the said pronote is entitle to fill up the same and further, the Petitioner/Defendant has not stated in the application as to what kind of evidence has been there in regard to the documents or as to how it was given at Forest Ranger office or whether the signature found therein belong to the Respondent/Plaintiff etc.
9. The Learned counsel for the Respondent/Plaintiff has supported the order of the trial Court in dismissing the application in I.A. No.305 of 2009 in O.S. No.376 of 2005 and reiterated the same before this Court.
10. At this juncture, this Court, for better and fuller appreciation of the matter in issue, extracts Rule 75 of the Civil Rules of Practice relating to production of records in the custody of Public Officer other than the Court and the same runs as follows:-
" 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 where 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."
11. In the affidavit in I.A. No.305 of 2009, the Petitioner/Defendant has specifically averred that once he has borrowed a sum of Rs.30,000/- from M/s. Baggiyalakshmi Finance having its principal place of business in North Car Street, Tiruchengode Town at which time he has affixed his thumb impression in several blank pronotes. Moreover, he promptly repaid the amount and when he demanded return of blank pronotes with his thumb impression, the financier returned three such blank pronotes. Further, at that time, when he borrowed the amount, he has not counted the number of blank pronotes. Only when he received the suit notice, he realised that the Respondent/Plaintiff is a Partner in the above Finance in the name of his father and he had retained one such blank promissory note with his thumb impression to fabricate the same as suit promissory note with a view to make wrongful gain.
12. The specific case of the Petitioner/Defendant is that the suit pronote is not supported by consideration and by establishing the same, he has to show that the writings in the blank pronotes produced by him are those of P.W.1.
13. In the main suit, it is not in dispute that the Respondent/Plaintiff's side evidence is closed and an opportunity has to be given to the Petitioner/Defendant to disprove the case of the Respondent/Plaintiff. Therefore, the Revision Petitioner/Defendant has filed the present I.A. No.305 of 2009 to send for the documents to substantiate his case. Really speaking, the documents in question mentioned in I.A. no.305 of 2009 are to be sent for from the Forest Range Officer, Rasipuram for the purpose of sending the same along with the handwriting of the Respondent/Plaintiff found in the blank pronotes filed therein to the handwriting expert for comparison and opinion.
14. A reading of the contents of Rule 75 of the Civil Rules of Practice indicate clearly that summons for the production of records in the custody of a public Officer other than the Court shall be made in Form No.23 and the same shall be addressed to the head of the department concerned and in the case of summons to the District Registrar or a Sub Registrar of 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. In fact, the 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.
15. Rule 75(2) speaks of every application for summoning of records 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 where 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.
16. The Learned counsel for the Petitioner/Defendant fairly admits before this Court that the Petitioner/Defendant has not filed any application before the proper Officer for obtaining the certified copies of documents from the custody of public Officer.
17. In the affidavit in I.A. No.305 of 2009 (filed by the Petitioner/ Defendant), it is not averred that Weekly Day Note (from 28.12.2008 to 3.1.2009) pertaining to N. Ganesan, Forest Officer, Ulipuram police range and Keeripatty police range (additional charge) cannot be obtained without unreasonable delay or expense.
18. At this juncture, it is to be pointed out that Rule 10 of Order 13 of the Civil Procedure Code allows a Court, of its own accord or on application to send for records, but requires that every application be supported by an affidavit showing that the records are materials and the copies cannot be obtained. In fact, the Court of law ought to keep in mind, the labor, which such calls entail and must make them when satisfied that the records are really needed.
19. It is to be noted that mere summoning of records itself does not make it in evidence. Indeed, appropriate steps must be taken in proving the concerned relevant documents in the manner known to law. Even if an application calling for records is negatived, it will not fetter a Court of law to call for records with a view of secure ends of justice. Added further, if numerous applications are filed for summoning of records without sufficient or no reasons, it is open to a Court of law to levy cost upon a party for protracting the pending proceedings indefinitely.
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.
21. As far as the present case is concerned, the Revision Petitioner/Defendant is only making an endeavour to substantiate his case/version as set out in the written statement pleadings and therefore in order to provide an opportunity to the Revision Petitioner/Defendant, this Court opines that the revision Petitioner/Defendant is the best person to know as to how to prove the version of the case and no one in this regard can advise or assist the Petitioner/Defendant in this regard. Strict technicalities or hyper technicalities are not to be employed when a Court of law deals with an application under Section 75 of the Civil Rules of Practice relating to production of records in the custody of a public Officer other than the Courts.
22. A liberal and lenient view, based on common sense and that a practical and purposeful approach will have to be adopted by a Court of Law. By taking a liberal/lenient view in favour of the Petitioner/Defendant in allowing I.A. No.305 of 2009 to advance the cause of justice, an opportunity will be provided to the Petitioner/Defendant to prove or establish his case. If the Petitioner/Defendant's application in I.A. No.305 of 2009 is thrown out at the initial stage of being rejected or dismissed, then there is no possibility for him to establish his case, since the doors of entry are shut once and for all. On the other hand, if an opportunity is provided to the Petitioner/Defendant in I.A. No.305 of 2009 by permitting him to summon the production of records in the custody of a public Officer other than the Court as prayed for by him in I.A. No.305 of 2009, then there is no prejudice or irreparable loss or any hardship would be caused to the other side by allowing I.A. No.305 of 2009, which will enable the Petitioner/Defendant to prove his case.
23. In view of the foregoing discussions and narrations, this Court comes to an inevitable conclusion that the trial Court has taken an incorrect view by its failure to exercise its judicial discretion in favour of the Review Petitioner/Defendant while dismissing the I.A. No.305 of 2009. As such, this Court interferes with the said order passed by the trial Court in I.A. No.305 of 2009 in O.S. No.376 of 2005 and set asides the said order in furtherance of substantial cause of justice.
24. In the result, the Civil Revision Petition is allowed and the order passed by the learned Additional District Munsif, Tiruchengode in I.A. No.305 of 2009 in O.S. No.376 of 2005 is set aside by this Court for the reasons assigned by this Court in this Revision. In view of the fact that the main suit in O.S. No.376 of 2005 is pending on the file of the trial Court at part heard stage, this Court, as an equitable relief to prevent an aberration of justice, directs the trial Court to dispose of the main suit in O.S. No.376 of 2005 on its file within a period of four months from the date of receipt of a copy of this order and report compliance to this Court without fail. Consequently, the connected M.P. is closed. However, there shall be no order as to costs.
To
1. The Additional District Munsif Court, Tiruchengode.
2. The Sub Assistant Registrar (Judicial Section), High Court, Madras (To watch and report) ssa