Andhra Pradesh High Court - Amravati
Sunkara Ganeswara Rao vs Sunkara Sarojini on 23 February, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.3804 of 2019
ORDER:
The point mainly fell for consideration in this revision is whether an unmarked document filed in a proceeding in a Court can be called for from its custody for use in another proceeding before the Court.
This Civil Revision Petition, under Article 227 of the Constitution of India, by the unsuccessful defendants is directed against the order, dated 07.03.2019, of the learned Additional Senior Civil Judge, Eluru, passed in I.A.No.1723 of 2017 in O.S.No.381 of 2008 filed under Order XIII Rule 10 of the Code of Civil Procedure, 1908 to call for the original memorandum of partition, dated 31.03.1979 from the I Additional District Judge Court, Eluru, for producing the same as evidence on her behalf.
2. Heard Mr. E.V.V.S.Ravi Kumar, learned counsel for the revision petitioners/defendants and Mr. Mangena Sree Rama Rao, learned counsel for the respondent/plaintiff. Perused the order impugned in the revision.
3. The facts, in brief, are as follows:
(a) The plaintiff's husband and his three brothers partitioned their properties through an instrument of memorandum of partition, dated 31.03.1979. Its original document was filed in O.S.No.292 of 2008 on the file of the Principal Junior Civil Judge Court, Eluru and the said suit was dismissed on 27.09.2012. Against the judgment and decree passed in O.S.No.292 of 2008, an appeal in A.S.No.17 of 2013 was filed on the file of I Additional District Judge, Eluru. The original 2 BSB, J C.R.P.No.3804 of 2019 memorandum of partition deed is required to prove the case of the plaintiff in O.S.No.381 of 2008. Hence, the plaintiff filed the present application in I.A.No.1723 of 2017.
(b) The defendants filed counter opposing the said application and contending that the memorandum of partition deed, dated 31.03.1979 is inadmissible in evidence for want of stamp duty and registration. Hence, the plaintiff cannot seek to call for the said document. The plaintiff once filed I.A.No.1565 of 2015 in the present suit seeking permission to file the certified copy of the alleged memorandum of partition deed, dated 31.03.1979. The Court below dismissed the said application, vide order dated 07.02.2017, holding that the said document is inadmissible in evidence. The said order has become final. Hence, the petition is liable to be dismissed.
(c) The Court below, on merits, allowed the petition holding that the respondents are at liberty to raise their objection when the document is tendered for marking, but not at the stage of receiving them. Aggrieved by the same, the defendants are before this Court.
4. The revision petitioner raised the following grounds:
1. The order of the trial Court is contrary to law and suffers from jurisdictional error.
2. The trial Court should have seen that the said partition deed was not marked in the earlier suit and therefore the present application is not maintainable.
3. The trial Court should have seen that PW1 the husband of the plaintiff during the cross-examination categorically admitted that the document partition deed was not marked.
4. The trial Court should have seen that under law an unmarked document cannot be send for as the unmarked document is not part of the record.
5. The other grounds will be urged at the time of arguments."3
BSB, J C.R.P.No.3804 of 2019
5. Since it is contended that an unmarked document cannot be called for, for better appreciation, the provision of Order XIII Rule 10 of the Code is excerpted hereunder:
"10. Court may send for papers from its own records or from other Courts (1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same.
(2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.
(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit."
The aforesaid provision makes it clear that it enables a Court to call for any record from custody of any Court, either on its own motion or on the application of any parties to the suit and no restriction or condition is imposed as is objected by the revision petitioner. Thus, the contention raised on this ground is not tenable in law.
6. There is no dispute about the fact that the admissibility of the document in evidence has been decided by the Court in I.A.No.1565 of 2015 and the same has been recorded by the Court below also in the impugned order. Yet, taking a lenient view, the Court below observed that inadmissibility of document in evidence is not a ground to dismiss the present application as the same can be looked into when the document is tendered for marking and that the respondents are at liberty to raise their objections when the document is so tendered in 4 BSB, J C.R.P.No.3804 of 2019 evidence. If this petition to call for the document is opposed, for the first time, on the ground of inadmissibility of the document in evidence, Court could have called for the document, deferring its decision on the admissibility of the document to be taken at the time when the document is tendered in evidence, in the light of Order XIII Rule 10 (3) of the Code. Since the decision on the admissibility of the document in evidence, though in a different petition in the present suit, has become final for not being challenged, no purpose would be served by calling for the document. Thus, the impugned order is liable to be set aside.
7. Accordingly, the Civil Revision Petition is allowed setting aside the the order, dated 07.03.2019, of the learned Additional Senior Civil Judge, Eluru, passed in I.A.No.1723 of 2017 in O.S.No.381 of 2008 and the said petition is dismissed.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this revision shall stand closed.
________________ B.S BHANUMATHI, J 23rd February, 2022 RAR