Madras High Court
P. Muthusamy vs Thiru Arunachalam (Died) on 29 August, 2023
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
C.R.P.Nos. 2648, 2655 & 2666 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.08.2023
CORAM:
THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.Nos. 2648, 2655 and 2666 of 2023
and
CMP.Nos. 16361, 16428 and 16481 of 2023
P. Muthusamy ...Petitioner
[In all three CRPs]
Versus
Thiru Arunachalam (Died)
1.A.Balasubramaniam
2.A.Paramasivam
3.The Revenue Divisional Officer
Revenue Divisional Office
Tiruppur.
4.The Tahsildar
Taluk Office
Tiruppur. ... Respondents
[In all three CRPs]
CRP.No.2648 of 2023 filed under Article 227 of the Constitution of
India, prays to set aside the fair and decreetal order dated 21.02.2023
made in I.A.No. 417 of 2018 in O.S.No. 224 of 2009 passed by the
Additional District Munsif Judge, Tiruppur.
https://www.mhc.tn.gov.in/judis
1/13
C.R.P.Nos. 2648, 2655 & 2666 of 2023
CRP.No.2655 of 2023 filed under Article 227 of the Constitution of
India, prays to set aside the fair and decreetal order dated 07.12.2022
made in I.A.No. 576 of 2022 in I.A.No. 418 of 2018 in O.S.No. 224 of
2009 passed by the Additional District Munsif Judge, Tiruppur.
CRP.No.2666 of 2023 filed under Article 227 of the Constitution of
India, prays to set aside the fair and decreetal order dated 21.02.2023
made in I.A.No. 418 of 2018 in O.S.No. 224 of 2009 passed by the
Additional District Munsif Judge, Tiruppur.
For Petitioner : Mr.K.Venkateswaran
For RR1&2 : Mr.K. GoviGanesan
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COMMON ORDER
Civil Revision Petitions have been filed seeking to set aside the fair and decreetal order 21.02.2023 made in I.A.Nos. 417 & 418 of 2018 and order dated 07.12.2022 made in I.A.Nos. 576 of 2022 in I.A.No.418 of 2018 in O.S.No. 224 of 2009 respectively.
2. Heard the learned counsel for the petitioner, the learned counsel for the respondents and perused the materials available on record. https://www.mhc.tn.gov.in/judis 2/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023
3. On a perusal of the record, it is seen that the respondents 1&2/plaintiffs have filed the suit in O.S.No. 224 of 2009 before the Additional District Munsif, Tiruppur, for declaration and permanent injunction. During the pendency of the suit proceedings, the petitioner/1st defendant has filed I.A.No.417 of 2018 has been filed under Section 151 CPC, seeking to reopen the defendants' side evidence and IA.No. 418 of 2018 has been filed under Rule 75 of Civil Rules of Practice seeking to issue subpoena to the Revenue Divisional Officer and Tahsildar, Tiruppur, to appear before the Court below to give evidence in respect of the suit property and also to produce the relevant documents in respect of the suit property. Moreover, the petitioner/1st defendant has filed IA.No. 576 of 2022 in IA.No. 418 of 2018 in OS.No. 224 of 2009 filed under Rule 32 read with Rule 44 of CPC seeking to receive the petition mentioned documents filed by the petitioner/1st defendant and to mark those documents as exhibits in I.A.No. 418 of 2018. After perusing the records, the Court below dismissed the applications by order dated 21.02.2023 and 07.12.2022 respectively. Aggrieved by the said orders, the petitioner/1 st defendant has come forward with the present Civil Revision Petition. https://www.mhc.tn.gov.in/judis 3/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023
4. The learned counsel for the petitioner/1st defendant contended that the suit property is only one way to reach the respondents/plaintiffs property. In the suit, trial has already been commenced, the witness on the side of the respondents/plaintiffs were examined. Furthermore, DW1 and DW2 were also examined on behalf of the petitioner/1st defendant. The defendants 2 and 3, who are the Revenue Authorities were not chosen to examine themselves as witness. Therefore, the defendants side evidence was closed and the suit was posted for arguments. The petitioner/1 st defendant has filed I.A.No. 565 of 2017 to examine the defendants 2 and 3 as a witness in the suit. The said application was dismissed on merits against which the petitioner/1st defendant has filed CRP.No. 3032 of 2017 before this Court and the same was dismissed by order dated 28.08.2017 was pleased to made an observation that it is always open to issue subpoena to call for official witnesses, revenue authorities to let in evidence in respect of the suit property and granted liberty to the petitioner to workout his remedy in the manner known to law. The learned counsel contended that the Revenue Officials, namely, the Revenue Divisional Officer and the Tahsildar, Tiruppur, are competent to speak about the Revenue Records which have been produced by the respondents/plaintiffs in the original suit. Therefore, it is very essential to issue subpoena to the https://www.mhc.tn.gov.in/judis 4/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023 Revenue Officials for examining them as a witness in the suit. Therefore, the IA.No.417 of 2018 has been filed to reopen the defendants side evidence and I.A.No.418 of 2018 has been filed to issue subpoena to the Revenue Divisional Officer, and the Tahsildar, Tiruppur, to appear before the Court below to give evidence in respect of the suit property and also to produce the documents in respect of the suit property.
5. The learned counsel for the petitioner/1st defendant contended that the petitioner has filed IA.No. 418 of 2018 under Rule 75 of Civil Rules of Practice read with Section 151 of CPC seeking a direction to the Revenue Officials, namely, the Revenue Divisional Officer and the Tahsildar, Tiruppur, to produce the original revenue documents which have been marked by the respondents/plaintiffs in the suit. Hence, it is very essential that the Revenue Officials have to be issued subpoena for the purpose of examination of the witnesses in the suit. However, on 10.08.2022 the petitioner/1st defendant has applied for certified copy of field map in S.F.Nos. 19 and 23 from 1977 to till date under Right to Information Act, 2005, before the Revenue Officials. However, vide communication O.Mu.5931/Tha.Aa.U.Sa.Ma.No:745/2022/E2, dated 16.08.2022, the Revenue Officials have refused to provide certified copies https://www.mhc.tn.gov.in/judis 5/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023 for the reason that they could not trace out those documents. The said documents are very much necessary and essential to decide and prove the facts stated in the affidavit filed in I.A.No.418/2018. Therefore, the petitioner/1st defendant filed the above mentioned communication dated 16.08.2022 along with order in Na.Ka.No. 222/V1/2016 passed by the District Registrar seeking to receive and mark those documents as exhibits in I.A.No. 418 of 2018. The delay caused in filing the said documents are neither wanton nor negligence but only due to the bonafide reasons stated above. Hence, the learned counsel prays to set aside the findings of the Court below.
6. On the other hand, the respondents 2 and 3 contended that the petition mentioned documents are irrelevant to decide the original suit and there is no pleadings in the written statement regarding the petition mentioned Document No.2, when the civil suit is pending before the Court of law, the Revenue Authorities have no any jurisdiction to decide the issue which is pending before the Court. Furthermore, the original suit has been filed in the year 2009 and the present applications have been filed after a lapse of 14 years. Hence, it is very belated and abnormal therefore, the above Civil Revision Petition is liable to be dismissed. https://www.mhc.tn.gov.in/judis 6/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023
7. On a perusal of the records, it is seen that the suit has been filed in the year 2009 and the present applications have been filed nearly after a lapse of 14 years. On 15.02.2010, the petitioner/1 st defendant had been set ex-parte in the suit. Subsequently, the petitioner/1 st defendant has been filed an application under Order 9 Rule 7 CPC and the same was allowed and his written statement was received. On 09.02.2016, the respondents/plaintiffs side evidence had been closed. However, the petitioner/1st defendant has failed to examine the witness in his favour nearly more than 15 adjournments. On 14.03.2017, the defendants side evidence was closed, and thereafter, the respondents/plaintiffs side arguments was over and the suit was posted for defendants side arguments. At this stage, the petitioner/1st defendant had filed an application in I.A.No. 565 of 2017 under Section 151 of CPC seeking to reopen the petitioner/1st defendant's side evidence which was dismissed on 11.07.2017 against which, the petitioner/1st defendant had preferred CRP.No. 3032 of 2017 before this Court which came to be dismissed. However, while disposing the Revision, this Court has observed that “it is always open to the petitioner/1st defendant to issue subpoena to call for any official witness to let in evidence in respect of a particular issue under https://www.mhc.tn.gov.in/judis 7/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023 their purview.” On the strength of the said observation the petitioner/1 st defendant has filed IA.Nos.417 and 418 of 2018 to reopen the defendants side evidence and to issue subpoena to the Revenue Divisional Officer and Tahsildar, Tiruppur. When the I.A.No. 418 of 2017 has filed to issue subpoena to the Government Officials the petitioner has to comply with the procedures contemplated under Rule 75 of Civil Rules of Practice ought to be filed along with the verified petition by stating that the petitioner/1st defendant was not able to obtain the certified copies of the petition mentioned documents despite he has applied. However, in the present petition, the petitioner/1st defendant stated that though he has applied several times the authorities have failed to provide the certified copy. But, the petitioner/1st defendant has not filed any documents to substantiate his claim. The learned counsel for the petitioner/1 st defendant argued that the petition mentioned Document No.1 is proving that the petitioner/1st defendant had applied before the Revenue Officials for certified copies. However, on a perusal of the petition mentioned Document No.1, it is clear that the petitioner/1st defendant has applied only on 10.08.2022 which is subsequent to the I.A.No. 418 of 2018. Though the IA.No.418 of 2018 has been filed after 14 years from the date of institution of the suit.
https://www.mhc.tn.gov.in/judis 8/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023
8. It is also seen that there is no documentary evidence produced by the respondents 1 and 2 to prove that there exist an alleged cart track and the respondents 3 and 4 herein are the competent authority to verify the existence of alleged cart track. However, the learned counsel for the respondents 2 and 3 had not chosen to examine them as a witness in the suit and their evidence was closed and the suit was posted for arguments. Pursuant to the same, the petitioner/1st defendant filed IA.No. 565 of 2017 seeking to reopen the evidence for cross-examination of the defendants 2 and 3 and the same was dismissed. Against which, the petitioner/1 st defendant had filed CRP.No. 3032 of 2017 and the same was dismissed with the observation that it is always open to the petitioner to issue subpoena to call for any official witness to purview. Therefore, the official defendants cannot be compelled to let in evidence. However, the petitioner/1st defendant is at liberty to work out his remedy in the manner known to law. As per the aforesaid observation, the petitioner/1st defendant had preferred two applications one for reopen the witness and another one to issue subpoena to the defendants 2 and 3. But, the trial Court had failed to consider the liberty which was granted by this Court to file subpoena. Pursuant to the same, the petitioner/1st defendant has filed a https://www.mhc.tn.gov.in/judis 9/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023 petition under Section 75 of Civil Rules of Practice to issue subpoena to the defendants 2 and 3 to give evidence in respect of the suit property and to produce the documents in respect of the suit property and hence, the contra findings of the trial Court is liable to be set aside. The Court below had failed to consider the case of the petitioner/1st defendant that the respondents 1 and 2 had filed a petition before the District Registrar seeking to declare the documents, namely, the Release Deed vide Document No. 6455 of 2009 and settlement deed vide Document No. 6459 of 2009 as false and forged documents. However, the District Registrar upheld the validity of the documents vide Order in Na.Ka.No. 222/B1/2016, dated 22.06.2017 and observed that the property mentioned in SF.No.19 2B measuring to an extent of 1248 sq.ft is part of 65 cents in SF.No.2B as per the parent partition deed No. 2197/1979 and to prove the averments of the respondents/plaintiffs as false, the petitioner had filed the IA.No. 570 of 2022 in I.A.No. 418 of 2018 to mark the said document in the suit and without considering the significance of the document, the trial Court dismissed the application along with main application. The trial Court ought to have allowed the petition to reopen the defendants side evidence for the purpose of the defendants 2 and 3 to produce the documents with regard to the suit property and the same is imminent to https://www.mhc.tn.gov.in/judis 10/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023 determine the issues raised in the suit and without considering the same the trial Court dismissed the application and the same is untenable and unsustainable in law. The reopening of the defendants side evidence for the purpose of the defendants 2 and 3 to produce the documents which are significant to the case and after dismissing his application, the trial Court had posted the matter for arguments and those documents are subsequent to the filing of the suit and if the suit is decided without considering the aforesaid documents, the petitioner would be put to immense prejudice and hardship and the same cannot be compensated.
9. Taking into the above facts and circumstances of the case and the submissions made by the learned counsels on either side, this Court directs the Court below to issue subpoena to the respondents 3&4 to appear before the Court below and produce all the relevant documents by the respondents 3&4 as well as let in evidence by them with regard to the suit property and the said documents will be treated as Court documents and pass appropriate orders on merits in accordance with law.
10. With the above directions, the Civil Revision Petitions are disposed of. Consequently, connected Miscellaneous Petitions are closed. No costs.
https://www.mhc.tn.gov.in/judis 11/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023 29.08.2023 Index : Yes/No Speaking order : Yes/No Neutral Citation : Yes/No MSM To The Additional District Munsif, Tiruppur.
https://www.mhc.tn.gov.in/judis 12/13 C.R.P.Nos. 2648, 2655 & 2666 of 2023 V.BHAVANI SUBBAROYAN, J.
MSM C.R.P.Nos. 2648, 2655 and 2666 of 2023 29.08.2023 https://www.mhc.tn.gov.in/judis 13/13