Madras High Court
Rabial Beevi vs Abdul Abubacker on 12 March, 2007
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Order Date of Pronouncing the Order
14.12.2018 20.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
C.R.P.(NPD) (MD) No.1538 of 2009
and
M.P.(MD) No.1 of 2009
1.Rabial Beevi
2.Pathimalshiek @ Mydeen Pathimal ... Petitioners / Petitioners / Appellants
[Through her Power Agent (vide
order in I.A.No.102 of 2007,
dated 12.03.2007, on the file of
the District Munsif Court,
Ambasamudram) Asan Pathu]
-vs-
Abdul Abubacker
@ Abubacker Sithiq ... Respondent / Respondent / Respondent
PRAYER: Civil revision petition is filed, under Article 227 of the Constitution
of India, to set aside the order, dated 21.01.2009, passed in I.A.No.135 of
2008 in A.S.No.80 of 2007, on the file of the Sub Court, Ambasamudram.
http://www.judis.nic.in
2
For Petitioners : Mr.V.Meenakshisundaram
For Respondent : No appearance
ORDER
In this civil revision petition, challenge is made to the fair and decreetal orders, dated 21.01.2009, passed in I.A.No.135 of 2008 in A.S.No.80 of 2007, on the file of the Subordinate Court, Ambasamudram.
2. The revision petitioners, who are the defendants 1 and 3 in the suit, in O.S.No.100 of 2003, laid by the respondent / plaintiff, on the file of the Additional District Munsif Court, Ambasamudram, for the reliefs of declaration and recovery of possession, suffered a decree and aggrieved over the same, they had preferred the first appeal. Pending appeal, it is found that the revision petitioners have laid an application, in I.A.No.135 of 2008, under Rule 76 of the Civil Rules of Practice and Section 151 of the Code of Civil Procedure, seeking to send for the property tax demand register maintained by the Pottalpudhur Panchayat Union to ascertain the tax paid by the revision petitioners' father, for a period of fifteen years continuously, as according to the revision petitioners, the tax had been assessed only in the name of their father continuously and the available tax receipts had been produced before the Trial Court and the other tax receipts had been lost and inasmuch as the http://www.judis.nic.in 3 tax assessment in respect of the property in dispute, in the name of their father, is essential for determining the issues involved in the matter, particularly, the revision petitioners' case, accordingly, preferred the abovesaid application.
3. The abovesaid application of the revision petitioners had been resisted by the respondent contending that the suit levied by him, after contest, had been decreed in his favour and the suit had been laid for the reliefs of declaration and recovery of possession and in such view of the matter, when the revision petitioners' possession of the suit property had been admitted, the documents sought to be sent for are not essential to determine the issues involved in the matter and the case of the revision petitioners that the tax had been assessed in the name of their father continuously for a period of fifteen years more is also not true and the revision petitioners have not based any cause for summoning the said records during the pendency of the suit in the Trial Court and if at all the revision petitioners had paid any tax, the said receipts should be available with them and the revision petitioners cannot be allowed to send for the documents as they wish, particularly, when they have not endeavoured to prefer any application for the reception of the additional evidence, as provided under law and therefore, the application is liable to be dismissed.
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4. The Court below, on a consideration of the rival contentions putforth by the respective parties, deemed it fit not to entertain the application preferred by the revision petitioners and accordingly, dismissed the same. Aggrieved over the same, the present civil revision petition has been laid.
5. The revision petitioners have suffered a decree in the suit laid by the respondent for the reliefs of declaration and possession. They had preferred the first appeal. Pending appeal, they had preferred the abovesaid application seeking to send for the property tax demand register of Pottalpudhur Panchayat Union with a view to establish their case that their father had been assessed to tax in respect of the property in dispute continuously for a period of fifteen years and all the tax receipts could not be produced by them as some have been lost, and it is their case that the documents sought to be send for should be summoned for enabling them to establish their case.
6. Per contra, it is contended by the respondent that the revision petitioners had not endeavoured to send for the records during the course of the trial before the Lower Court and furthermore, the revision petitioners cannot be allowed to send for the documents, without making any foundation with reference to the same by preferring the application under Order XLI Rule 27 of the Code of Civil Procedure and as provided under law, therefore, it is http://www.judis.nic.in 5 stated that only with a view to delay the proceedings further, the application has been laid and prayed for the dismissal of the application.
7. As rightly putforth by the respondent in the counter and also determined by the Court below, no valid reason has been projected by the revision petitioners as to why they had not endeavoured to send for the documents, now they seek, during the course of trial of the suit in the Trial Court. Now, according to the revision petitioners, even though they had applied for the copies of the documents which had been called for from the Panchayat Union, however, the same had not been furnished to them on account of the pendency of the suit and hence, they have been necessitated to lay the application. However, as rightly determined by the Court below, when according to the revision petitioners, they are well aware of their case that the property in dispute had been assessed in their father's name continuously for a period of fifteen years, even during the pendency of the suit, at the earliest, they should have endeavoured to secure the documents from the concerned Panchayat Union to buttress their defence. Furthermore, it is not the case of the revision petitioners that they are unable to procure the copies of the documents from the Panchayat Union. Even they have admitted that they have already moved the Panchayat Union for obtaining the copies of the documents, however, the same have not yet been furnished to them. In such http://www.judis.nic.in 6 view of the matter, as determined by the Court below, when with reference to their contention that the Panchayat Union had refused to furnish the copies of the documents on account of the pendency of the suit is not borne out by any material and when the revision petitioners had already moved the Panchayat Union for obtaining the copies of the documents, in such view of the matter, as decided by the Court below, the revision petitioners should make all endeavours in obtaining the copies of the requisite documents in support of their case and produce the same before the Court for sustaining the case. On the other hand, the revision petitioners cannot be allowed to take their own time in summoning the documents, without making any foundation for the same and in such view of the matter, the Court below is found to have rightly dismissed the application. When even according to the revision petitioners, they had also moved the Panchayat Union for obtaining the documents, the revision petitioners are advised to proceed further in that aspect and obtain the copies and therefore, the Court below is justified in not sending for the documents as prayed for, particularly, when the revision petitioners have not endeavoured to secure the documents at the earliest point of time, it is found that only with a view to delay the appeal proceedings one way or the other, the revision petitioners have come forward with the belated application, that too, when their application for obtaining the certified copies of the documents from the Panchayat Union is pending.
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8. During the course of the civil revision petition, it is submitted by the revision petitioners' counsel that they had also further moved the Panchayat Union for obtaining the documents, however, till date they had not been given the copies. It is not the case of the revision petitioners' counsel that their request has been turned down by the Panchayat Union and in such view of the matter, as determined by the Court below, the documents sought to be send for cannot be done at the intervention of the Court as prayed for, particularly, when the application with reference to the same preferred by the revision petitioners is already pending under the consideration of the Panchayat Union.
9. For the reasons aforestated, the civil revision petition is found to be not entitled for acceptance and the civil revision petition is, accordingly, dismissed. No costs. Consequently, connected miscellaneous petition is closed.
20.12.2018
Internet : Yes / No
Index : Yes / No
krk
http://www.judis.nic.in
8
T.RAVINDRAN, J.
krk
To:
The Sub Judge,
Ambasamudram.
ORDER
IN
C.R.P.(NPD) (MD) No.1538 of 2009
and
M.P.(MD) No.1 of 2009
20.12.2018
http://www.judis.nic.in