Madras High Court
S. Rathinaswamy, S/O. Sivasubramania ... vs S. Bhanumathi, W/O. Selvaraj And Ors. on 11 August, 2005
Equivalent citations: AIR2006MAD221, 2006(2)CTC491, (2006)3MLJ593, AIR 2006 MADRAS 221, 2006 (4) AKAR (NOC) 578 (MAD), 2006 AIHC NOC 390, (2007) 1 CIVLJ 193, (2006) 2 CTC 491 (MAD)
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. These Civil Revision Petitions are directed against the order of District Munsif, Tiruvarur dated 24.2.2003 in LA. Nos. 27 to 29 of 2003 in O.S.A. No. 254 of 2000, declining to recall P.W.2 and to mark certain documents. The Plaintiffs are the Revision Petitioners.
2. The relevant facts/pleadings necessitated for the disposal of these Civil Revision Petitions could briefly be stated thus:
O.S. No. 254 of 2000.- The Plaintiffs are the permanent residents of Thenkarai Velangudi Village in Perungudi Vattam. The case of the Plaintiffs is that their forefathers owned R.S. Nos.l, 15, 16 arid 17 among other properties. The entire lands in Thenkarai Velangudi Village were owned by the Plaintiffs ancestors and now by the Plaintiffs. The ancestors of the Plaintiffs set apart about 15 cents in R.S.I6 now sub-divided as 16/IF under UDR and R.S.16/2 Punja by classification in Perungudi Vattam belonging to them as cremation and burial site and pathway respectively. The Plaintiffs have been using it as Cremation Site and Pathway leading to cremation site. They are the patta lands belonging to the Plaintiffs and their ancestors. The Mother of the First Plaintiff and the Plaintiffs younger Brother Gnanam were cremated in R.S.16/1F. The last cremation took place in 1995. There is no public cremation ground in Thenkarai Velangudi Village over any poramboke land. There is another Cremation Site in R.S.6, which is used by Adi Tamizhars in East Street.
3. Further case of the Plaintiffs is that the First Defendant - a Stranger to Thenkarai Velangudi Village and is a permanent resident of Thiruvarur. He claims to have purchased the property from the Second Defendant's Daughter-Vijayalakshmi. On the strength of the Sale Deed, the First Defendant has encroached upon the Cremation Ground in R.S.16/1F and R.S.1/2 in or about May 1999. Due to the trespass into the land, the Plaintiffs have no Cremation Ground nor the place to perform the funeral ceremonies or conduct pooja or graze the cattle. The trespass of the First Defendant is liable to be removed. Hence, the Plaintiffs have filed the Suit to direct the First and Third Defendant to hand over vacant possession to the Plaintiffs.
4. The First and Third Defendants have filed the Written Statement denying the existence of any cremation ground in R.S. 16 and R.S. 16/1F and 16/2. To the knowledge of Defendants 1 and 3, no Cremation Ground was in existence in the above said properties. Only further West of the First Defendant's land, there is one Samadhi, but the Suit Property R.S.16/1F and R.S.16/2 was never used as the Cremation Ground. If really there was a Cremation Ground in R.S.16/1F, the Government would have not have granted the patta in favour of one Rajakannu under UDR Scheme. As per the Partition Deed, the said property in R.S. 16/1F was allotted to Rajakannu. The said Rajakannu had settled the property in favour of the Third Defendant by Settlement Deed dated 8.9.1998 and the Third Defendant has left the property to the First Defendant. There was no festival or ceremony conducted in S.No.1/2. The First Defendant is in enjoyment of the Suit Properties by raising the crops. The Defendants and their predecessors in Title have been in enjoyment of the Suit Property for more than 40 years and have perfected their Title. Hence, the Plaintiffs are not entitled to any relief in the Suit.
5. Conceding the case of the Plaintiffs, the Second Defendant has filed the Written Statement challenging the Title of the First Defendant in 72 cents. The Second Defendant has no objection for handing over possession of R.S.16/lF-Vacant Site, R.S.16/2-Poromboke land and S.No.20/5 in Vijayapuram vacant site.
6. On the above pleadings, relevant issues have been framed. The Trial commenced in October 2002. Evidence of the Plaintiffs and the Defendants was closed on 22.1.2003. The case was adjourned for arguments on 24.1.2003. At that stage, LA. Nos. 27 to 29 of 2003 were filed for reopening the case, recalling P.W.2 and for marking the documents enumerated in the Petition. According to the Plaintiffs, those documents were not earlier traceable and those documents are essential documents and hence sought to receive them on behalf of the Plaintiffs. All the Applications were resisted by Defendants 1 and 2 contending that there is no bona fide on the part of the Petitioners that the documents sought to be exhibited are new and no proper reason is adduced by the Plaintiffs to recall P.W.2 and hence, P.W.2 cannot be permitted to be recalled to mark the documents.
7. Learned District Munsif, Thiruvarur dismissed the Applications finding that after the C.P.C. (Amendment) Act 2002, Order 18, Rule 17, C.P.C., has been deleted and hence, P.W.2 cannot be recalled. It was further held that the Plaintiffs have not stated any reason as to why the documents were not produced earlier and that the request to reopen the case for the purpose of marking the documents cannot be allowed and declined to recall P.W.2.
8. Aggrieved over the order of dismissal of the Applications, the Plaintiffs have preferred these Civil Revision Petitions. Contending that Order 18, Rule 17, C.P.C. has not been deleted by the Amendment, learned Counsel for the Revision Petitioners submitted that Order 18, Rule 17, C.P.C. is the provision, which enables the Court to recall the Witness at any stage to put question in the Suit. Submitting that wide powers conferred upon the Court under Order 18, Rule 17, C.P.C, learned Counsel for the Revision Petitioners has relied upon the decisions in Ulamal Ameen Sahib v. Abdulla Sahib and Anr. 1989 (1) LW 504 and Suresh Kumar v. Haldevraj, AIR 1984 Del. 439. It is submitted that for clearing any ambiguity, either the Court may recall the Witness or at the instance of the parties. It is further submitted that though Order 13, Rule 2, C.P.C., has been omitted by the C.P.C. (Amendment) Act 1999, under Order 7, Rule 14(3) and under Order 8, Rule 1-A(iii), C.P.C, the Court is conferred with the power to receive the documents (which have not been filed along with the Plaint or Written Statement) in genuine cases. Submitting that the Court below has not properly appreciated the case of the Revision Petitioners in the light of the amended provisions, learned Counsel for the Revision Petitioners prayed to set aside the Impugned Orders and permitting the Plaintiffs to file the documents which are the public documents and that no prejudice would be caused to the Defendants by receiving those documents.
9. Countering the arguments, learned Counsel for the Respondents/Defendants 1 and 3 has submitted that no convincing reason has been stated in the Affidavit for non-production of the documents. It is further submitted that unless convincing reasons are stated for not producing the documents earlier, Order 7, Rule 14(3), C.P.C, cannot be invoked to file the documents. It is further submitted that when no satisfying reasons have been stated, the Court below has rightly declined to receive the documents and reopen the case and also declined to recall P.W.2.
10. Upon consideration of the contentions of both parties, Impugned Order and other materials on record, the following points arise for consideration in these Civil Revision Petitions:
Whether the Plaintiff has made out a case to receive the documents and whether the reasons stated by the Plaintiff satisfy the requirements of Order 7, Rule 14(3), C.P.C. (as per C.P.C. (Amendment) Act, 2002) ?
Whether the Impugned Order declining to reopen the case, recall P.W.2 and to receive the documents is sustainable ?
11. The trial commenced in October 2002. Evidence of the Plaintiffs and the Defendants was closed on 22.1.2003. When the case was posted for arguments on 24.1.2003, LA. Nos. 27 to 29 of 2003 were filed on 21.1.2003 for reopening the case, recalling P.W.2 and for marking certain documents. The question of recalling and reopening of the case would arise only if the documents are ordered to be received in evidence. Prior to Amendment, under Order 13, Rule 2, C.P.C. no document could be produced at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court and the Court recording the reasons for receiving any such evidence. Prior to C.P.C. (Amendment) Act, 1999 (with effect from 1.7.2002) Order 13, Rule 2(1), C.P.C., read thus:
Rule 2(1): No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing Order 13, Rule 2, C.P.C. is now omitted by C.P.C. (Amendment) Act, 1999, with effect from 1.7.2002.
12. Hence, after the Amendment, the Application to receive the documents cannot be filed under Order 13, Rule 2, C.P.C. The Application has been rightly filed under Order 7, Rule 14(3), C.P.C. Under Order 7, Rule 14(3), C.P.C, the Court has the power to receive the document which was not filed along with the Plaint. After the C.P.C. (Amendment) Act, 2002, Order 7, Rule 14(3), C.P.C". reads:
...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 amended 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 or the hearing of the Suit....
(Underlining added)
13. Under C.P.C (Amendment) Act 1999, if any document or a copy thereof could not be filed with the Plaint under this Rule, it could not be allowed to be received in evidence on behalf of the Plaintiff at the hearing of the Suit. There was complete embargo on the power of the Court and any such document could not be received in evidence at a later stage. This provision has been modified by the C.P.C. (Amendment) Act, 2002 and now such document may be received in evidence with the leave of the Court, which the Court shall grant in genuine cases. Thus, if any document or a copy thereof could not be filed with the Plaint, it may be received in evidence with the leave of the Court, which the Court shall grant in genuine cases. Rigour of the Rule does not apply to the documents which are sought to be adduced or corroborative evidence in support of the claim made in the Plaint. Order 7, Rule 14(3), C.P.C. enables the Court to receive the documents which were not filed along with the Plaint in genuine cases. Obviously the object of this provision is to avoid delay.
14. Similar provision is made for the Defendant to file the documents under Order 8, Rule 1-A(3), which has been inserted by the C.P.C. (Amendment) Act, 2002. Order 8, Rule lrA(3), reads:
A document which ought to be produced in Court by the defendant under this Rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the Suit.
15. The amended provision of Order 7, Rule 14(3), is to the effect:
(a) A duty is cast upon the Plaintiff to produce the documents in his possession in the Court and file the same along with the Plaint filed by him. The Plaintiff shall enter such documents in a list and shall produce it in Court when the Plaint is presented by him and shall deliver document and a copy thereof to be filed with the plaint.
(b) When such document is not in possession or power of the Plaintiff, a duty is cast upon the Plaintiff to state (wherever possible) in whose possession or power the document is available.
(c) If the Plaintiff does not file the document or a copy thereof or not entered in the list to be added and not produced or entered, accordingly those documents cannot be received in evidence on behalf of the Plaintiff at the time of hearing the Suit except with the leave of the Court.
16. Thus, Order 7, Rule 14(3), enables the Court to receive the documents, which were not filed along with the Plaint in genuine cases. Now, the Plaintiffs seek to produce the following documents:
(i) Perungudi Village Plan;
(ii) Plan relating to S.No. 16;
(iii) Receipt for obtaining Perungudi Village plan;
(iv) Plan relating to S.No.l;
(v) Plan relating to S.No. 15.
These documents are sought to be produced by the Plaintiffs to show that there is no other Cremation Ground in Thenkarai Velankudi Village and to substantiate their other contentious points. According to the Plaintiffs, those documents were not traceable earlier.
17. Case of the Plaintiffs is that there is no other Cremation Ground in the Village. According to them, the Ancestors of the Plaintiffs set apart R.S.16 now sub-divided as 16/1F under UDR Scheme and R.S.16/2 Punja by Classification. Now, the documents have been produced on 21.01.2003. As noted earlier, the Trial commenced in October 2002. Evidence of the Defendants was completed on 22.1.2003. When the case has been adjourned for arguments on 24.1.2003, the Applications have been filed to reopen the case to recall P.W.2 and to receive the documents (Order 7, Rule 14(3), C.P.C.). It is to be pointed out that within reasonable time after the commencement of the Trial, the documents have been produced by filing the Applications.
18. The main object of Order 7, Rule 14(3), C.P.C., conferring the power upon the Court to receive the documents in genuine cases is to receive the documents if good cause is shown to the satisfaction of the Court for the non-production of the documents at the earlier stage. The Courts are expected to receive the documents and give an opportunity to the parties. The Revenue Records like Village Plan and Survey Numbers which were not within the knowledge of the Plaintiffs and whose authenticity cannot be doubted are to be received and the Court may grant permission to receive those documents. Case of the Plaintiffs is that there is no other Cremation Ground in Thenkarai Velankudi Village. Hence, the Village Plan is a document of vital importance. That document stated to be not traceable earlier. Permission may not be withheld due to the delay in production. Similarly, the Survey Plans relating to the S.Nos.l, 15 and 16 are Public Documents, which are to be received in evidence to afford an opportunity to the Plaintiffs. The reason stated by the Plaintiffs that those plans were not traceable is genuine reason. In the circumstances of the case, this Court is of the view that the Trial Court ought to have exercised its discretion under Order 7, Rule 14(3), C.P.C. allowing the Plaintiff to produce the documents. The Court below has not taken note of the fact that the documents produced are the public documents/Revenue Records and the reasons stated by the Plaintiffs is that the Survey Plans were earlier not traceable.
19. Pointing out the deletion of Order 13, Rule 2, C.P.C. by the C.P.C. (Amendment) Act, 1999, learned Counsel for the Respondents/Defendants has submitted that the documents cannot be allowed to be received. It is further contended that in the Application filed under Order 7, Rule 14(3), C.P.C, no convincing reasons are stated to receive the documents. Countering the arguments, learned Counsel for the Revision Petitioners/Plaintiffs has submitted that the amended provisions of C.P.C. are not applicable to the cases filed prior to 1.7.2002. In support of his contention, learned Counsel for the Revision Petitioners has relied upon the decision in Rethinam @ Anna Samuthiram Animal v. Syed Abdul Rahim 2005 (3) CTC 321. While considering the effect of C.P.C. (Amendment) Act, 2002, P.K. Misra, J. has found "....Any pleading filed before 1.7.2002 would not be governed by amended Act and Amendment of pleading is to be decided as per law as it stood prior to 1.7.2002 in respect of such cases...." The Amendment Act, 2002, was found inapplicable to the Amendment of Pleading mainly on the ground of Section 16 of the C.P.C. (Amendment) Act, 2002, which contains the provisions relating to "Repeal and Savings". After extracting Section 16 Repeal and Savings, learned Single Judge has held-
...From the bare reading of the provisions contained in Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, it is clear that such amended provision as contained in proviso shall not apply to in respect of any pleadings filed before the commencement of the amended Code. Pleadings in this context obviously included the plaint and Written statement. Therefore, in respect of the Plaint or Written Statement filed before 1.7.2002, the proviso to Order 6, Rule 7,C.P.C, would have no applicability....
The learned Judge was of the above view mainly on the ground of Section 16, C.P.C. (Amendment) Act, 2002. The Proviso to Order 6, Rule 17, C.P.C. would have no applicability in respect of the Plaint or Written Statement filed before 1.7.2002. Basing on the above decision, it cannot be held that in the case in hand, the amended provisions of Civil Procedure (Amendment) Act, 2002, have no applicability. The case in hand is governed by the amended provisions of Code of Civil Procedure (Amendment) Act, 2002. The Trial Court also had taken the correct view that the provisions of amended C.P.C. would be applicable.
20. In the case in hand, we are not concerned with any amendment of Pleading. The Trial has commenced after coming into force of the C.P.C. (Amendment) Act, 2002. Certainly, the provisions of C.P.C. (Amendment) Act, 2002 would apply. However, for the reasons stated by the Plaintiffs in the supporting affidavit filed under Order 7, Rule 14(3), C.P.C, that the documents were not earlier traceable and that the Village Plan and the Survey Plan are public documents, this Court is of the view that the Court below ought to have permitted the Plaintiffs to produce the documents exercising its discretion under Order 7, Rule 14(3), C.P.C. The Impugned Orders in LA. Nos. 27 to 29 of 2003 declining to reopen the case, recall P.W.2 and to mark the documents cannot be sustained and the Applications are to be allowed.
21. Under C.P.C. (Amendment) Act, 1999, Order 18, Rule 17-A, C.P.C, has been omitted. Prior to enforcement of C.P.C. (Amendment) Act, 1999, Order 18, Rule 17-A, C.P.C, read thus:
Rule 17-A. Production of evidence not previously known or which could not be produced despite due diligence.- Where a party satisfies the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may permit that party to produce that evidence at a later stage on such terms as may appear to it to be just.
22. The purpose of omission or Order 18, Rule 17-A, C.P.C, is to avoid delay in the Trial Proceedings. By the Amendment 1976, Rule 17-A, C.P.C, has been inserted to permit production at a later stage of additional evidence which was not within the party's knowledge or which could not be produced when leading evidence. It will minimise the number of applications for additional evidence in the Appellate Court under Order 41, Rule 27. As for production of evidence before Appellate Court not within party's knowledge at the Trial. The effect of deletion of Order 18, Rule 17-A, C.P.C, is merely to restore status quo ante. On the effect of deletion of Order 18, Rule 17-A, C.P.C. in the decision in Salem Advocate Bar Association v. Union of India. 2003 (1) SBR 62, the Supreme Court has held:
...We find that in the Code of Civil Procedure, 1908 a provision similar to Rule 17-A, did not exist. This provision as already noted was inserted in 1976. The effect of the deletion of this provision in 2002 is merely to restore status quo ante, that is to say, the position which existed prior to the insertion of Rule 17-A in 1976. The remedy, if any, that was available to a litigant with regard to adducing additional evidence prior to 1976 would be available now and no more. It is quite evident that Rule 17-A, has been deleted with a view that unnecessarily applications are not filed primarily with a view to prolong the Trial....
23. Order 18, Rule 17-A, C.P.C., was the enabling provision to produce additional evidence, which was not within the knowledge of the parties or which could not be produced by the party at the time when the party was leading the evidence. Since Order 18, Rule 17-A, C.P.C. has been omitted under C.P.C. (Amendment) Act, 1999, it is contended that P.W.2 cannot be recalled for marking the documents sought to be produced after the closure of the Plaintiffs evidence. The main contention of the Respondents/Defendants is that the effect of deletion of Order 18, Rule 17-A, C.P.C. to remove the delaying tactics which the parties might adopt in producing the additional evidence at a later stage. On behalf of the Contesting Defendants, it is also contended that the Village Plan and Survey Plan must have been within the knowledge of the Plaintiff and the Plaintiff failed to exercise due diligence and the Plaintiff cannot be permitted to produce the additional evidence at the stage when the case is posted for arguments.
24. Countering the arguments, learned Counsel for the Revision Petitioners/Plaintiffs contended that though Order 18, Rule 17-A, C.P.C. has been omitted, the Court exercising its powers under Order 18, Rule 17, C.P.C, read with Section 151, C.P.C, could allow P.W.2 who was examined already to recall himself subsequently. In support of his contention, learned Counsel for the Revision Petitioners/Plaintiffs has relied upon the decision in Ulamal Ameen Sahib v. Abdulla Sahib and Anr. 1989 (1) LW 504, wherein this Court has held that the Court can exercise its power under Section 151, C.P.C, to recall the Witnesses if the circumstances so warrant. In the said case, it was held:
...I am of the view that the Court can exercise its power under Section 151, C.P.C, and recall a witness if the circumstances of the case require the same. I am also of the view that such recalling can be made at any stage of the Suit even at the time when the Judgment in the Suit is about to be delivered....
25. Order 18, Rule 17, C.P.C, empowers the Court to recall at any stage a Witness who has been examined and cross-examined. The powers under the Rule are very side and the Court can recall a Witness for the purpose of clarification of any ambiguity or omission noticed. The power can be exercised suo motu as also at the instance of a party. In the decision in S.S.S. Durai Pandian v. S.A. Samuthira Pandian AIR 1998 Mad. 323, it has been held that the Trial Court has got powers to recall the Plaintiff for re-cross-examination under Order 18, Rule 17 of the Code of Civil Procedure on the Application filed by the Defendant independent of Section 151, C.P.C. It is also clear that this power is purely discretionary. However, but the same ought to be exercised with the greatest care and only in the most peculiar circumstances. The right of the Court to act under this Rule is not restricted to action of its own motion.
26. Order 18, Rule 17, C.P.C. is the enabling provision for the Court to recall any witness, who has been examined. Normally, Order 18, Rule 17, C.P.C, does not permit the Court normally to recall a Witness at the instance of a party. Since Order 18, Rule 17-A, C.P.C, is now deleted, the power of the Court under Order 18, Rule 17 to recall the Witness at the instance of the party becomes more limited. The power is purely discretionary which is to be sparingly exercised in rare cases. In the cases where Courts recall the witnesses under Order 18, Rule 17, C.P.C, at the instance of the party, duty is cast upon the Court to record its reasons in exercising the discretion to recall the witnesses. Lest multitude of applications would be filed under Order 18, Rule 17, C.P.C, whenever parties desire to produce additional evidence. Such course would defeat the object of the legislature in deleting Order 18, Rule 17-A, C.P.C.
27. In this case, the Plaintiffs have produced documents-Plan and Survey Plan regarding S.No. 1, 15 and 16 and in the Affidavit, it is averred that the documents were not earlier traceable. The Plan sought to be produced are the Public documents. The case in hand is one such instance to exercise the discretion to recall P.W.2 invoking the power of the Court under Order 18, Rule 17 read with Section 151, C.P.C The Trial Court has not properly appreciated the vital importance of the documents sought to be produced by the Plaintiffs. The documents are to be received for proper and complete adjudication. Hence, the Application in LA. No. 28 of 2003 is to be allowed to recall P.W.2. Likewise, the order in LA. No. 27 of 2003 to reopen the case is also to be allowed.
28. For the foregoing reasons, the Impugned orders dated 24.02.2003 passed by the District Munsif, Tiruvarur in LA. Nos. 27 to 29 of 2003 in O.S. No. 254 of 2000 are set aside and these Civil Revision Petitions are allowed. Consequently, LA. Nos. 27 to 29 of 2003 in O.S. No. 254 of 2000 are allowed. In the circumstances of the case, there is no order as to costs. The connected C.M.P. No. 5765 of 2003 is closed.
29. Learned District Munsif, Thiruvarur is directed to reopen the case of the Plaintiffs and recall P.W.2 for the purpose of marking the documents produced by the Plaintiffs. Learned District Munsif is further directed to afford sufficient opportunities to the Defendants to cross-examine P.W.2 relating to the additional evidence to be adduced through P.W.2. The Trial Court is directed to expedite the disposal of the Suit and dispose of the same in accordance with law.