Allowed

Mohamed Kasim v. Karunanidhi

Madras HC23 Oct 2019CRP/3370/2014

Case brief

AI extract

What is this about?

Civil Revision Petitions challenging an order dismissing applications to receive belated documents were allowed. The High Court set aside the lower court's order on conditions, directing costs to be paid to respondents and the matter to be disposed of within three months.

What did the court decide?

Impugned order set aside conditionally; petitioner to pay Rs. 3,000 costs to each respondent within two weeks; matter to be disposed within three months.

Mohamed Kasim Vs Karunanidhi — Property and Title | Madras HC (2019)

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C.R.P.PD.Nos.3370 to 3372 of 2014

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 17.10.2019

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PRONOUNCED ON : 23.10.2019

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CORAM

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THE HONOURABLE Mr. JUSTICE R.PONGIAPPAN

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C.R.P.PD.Nos.3370 to 3372 of 2014
and M.P.No.1 of 2014
Mohamed Kasim ... Petitioner in all
CRPs
Vs.
1. Karunanidhi
2. Mariappan
3. Sudha ... Respondents in all
CRPs

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COMMON PRAYER : Civil Revision Petitions are filed under Article 227 of the Constitution of India, to set aside the Fair and decreetal order dated 18.07.2014 passed in I.A.Nos.247, 248 & 249 of 2014 in O.S.Nos.31 of 2007, on the file of the District Munsif cum Judicial Magistrate Court, Parangipettai.

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C O M M O N O R D E R

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Aggrieved over the order dated 18.07.2014 passed in I.A.Nos.247, 248 & 249 of 2014 in O.S.Nos.31 of 2007, on the file of

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the District Munsif cum Judicial Magistrate Court, Parangipettai, the petitioner in all the three revision petitions, who is the plaintiff in the

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above referred suit, filed these Civil Revision Petitions.

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On 08.08.2007, the petitioner herein filed a suit in O.S.No.31 of 2007 under Order VII Rule 1 of C.P.C., as against the respondents herein and sought for the relief of declaration, delcaring that the petitioner/plaintiff is the absolute owner of the suit property and consequently, he sought for the relief of permanent injunction restraining the first respondent/first defendant in interfering with the peaceful possession and enjoyment of the suit property. After completing the trial proceedings, when the case was posted for both sides arguments, the petitioner filed three applications in I.A.Nos. 247, 248 & 249 of 2014, with the prayer to re-open the plaintiff's side case, to recall the P.W.1 and to condone the delay in filing the documents which were annexued, respectively.

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The common avernments made in the three affidavits filed

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in support of the respective applications are as follows :-

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Only during the time, when the case was posted for arguments, the documents now enclosed along with the applications are traced out, in which one of the documents, received from the Sub Registrar's office, which is necessary to prove the case of the petitioner. For receiving and for marking those doucments, allowing the applications filed by the petitioner is very necessary.

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Resisting the claim made by the petitioner, the third

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respondent in this revision petition filed a counter before the trial Court. In the counter affidavit, the third respondent had stated that the petitioner has filed those applications belatedly after the lapse of nine months from the date on which, both side evidences were closed. Further, the documents now requested to be received by the Court are created by the petitioner for the purpose of proving his case. According to him, recalling P.W.1 and marking the above documents are unnecessary. It is an attempt made by the petitioner to prolong the case before the trial Court.

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Having considered all the materials placed before him and after affording opportunities on either side, the learned District Munsifcum-Judicial Magistrate, Parangipettai, by an order dated 18.07.2014, dismissed all the three applications filed by the petitioner, by observing that the petitioner filed those applications belatedly. Further observed that the doucments, which are now requested to be received by the Court were created subsequent to the suit and thereby, the said documents are not having much importance for deciding the suit filed by the petitioner. Feeling aggrieved over the same, the petitioner is before this Court, with these Civil Revision Petitions.

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Today when these petitions came up for hearing, the learned counsel appearing for the petitioner and the respondents are present and made their respective submissions.

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The learned counsel appearing for the petitioner made a submission that originally the suit property belongs to the family of the second respondent. On 13.03.2006, the petitioner purchased the suit property from the second respondent, Thiagarajan, Senthilkumar and Vairam ammal for a proper consideration. From the date of purchase,

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the petitioner has been in possession and enjoyment of the suit

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property. After the sale made, the second respondent requested the petitioner to allow him to reside in the suit property till he gets a suitable place. Accordingly, the petitioner permitted the second respondent to live in the suit property along with his family.

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7.1. On the other hand, one Pavadai Padayachi and his sons

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Thiagarajan and Arjunan are having property situated northern side of the property purchased by the petitioner. Both the properties are having same survey numbers in R.S.No.95/1B to the extent of five cents, in which Pavadai Padayachi's family is having three cents and the vendor of the petitioner is having two cents. Before filing the suit on 21.05.1979, the said Pavadai Padayachi and his sons have borrowed a sum of Rs.1,500/- from the first respondent and exeucted a conditional sale deed in favour of the first respondent. They martgaged only three cents out of five cents in R.S.No.95/1B. However in the martgaged deed, they failed to mention the remaining suit property, which was situated in the southern side of the said property. Accordingly, the description of the property in the conditional sale deed is wrong and incorrect. Only in the said circumstances, the petitioner filed the present suit for the relief of decalaration and subsequent injunction. In this occasion, since the documents such as the house tax receipt, electricity

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bills etc., are necessary to prove the possession of the petitioner in the property, the above said applications have to be allowed.

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7.2. The learned counsel appearing for the petitioner relied

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upon the judgment reported in (2019) 6 MLJ 312 in the case of Ponnammal Vs. Malaiyan and another , in which, this Court followed the judgment of our Hon'ble Apex Court reported in (2011) 11 SCC 275 in the case of K.K.Velusamy Vs N.Palanisamy and

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directed the trial Court to receive the doucments produced after filing

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the suit.

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On the other hand, the learned counsel appearing for the respondents 1 & 3 would contend that for availing the relief of declaration, the petitioner has to produce the title deed and other documents, which are necessary to prove his possession. But instead of producing the title deed before the trial Court, he wanted to mark the house tax receipts and electricity bills as exhibits. Furthermore all the documents are created and issued after filing the suit by the petitioner. So the evidensary value of the said documents do not have much importance. According to him, the learned District Munsif-cum-Judicial Magistrate, Parangipettai, rightly dismissed the above said applications and the present revision petitions are reserved to be dismissed.

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The submissions made by the learned counsel on either side are considered.

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Now on going through the factual aspect in the case referred by the learned counsel appearing for the petitioner reported in (2019) 6 MLJ 312 , in the said case, the aggrieved party wants to mark the documents issued by the school authority and the copy of the sale deed obtained by the aggrieved party after framing the issues. This Court, at the time of disposing the above said case, has held that before filing the suit, the documents were not in the existence of the petitioners concerned. But here is the case entirely different from the above said fact referred by the learned counsel appearing for the petitioner.

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Here it is the case filed by the petitioner for the relief of

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declaration. The suit property pertains to these revision petitions is an immovable property. The petitioner himself addmitted in the plaint, that he purchased the suit property from the legal heirs of the second defendant. So for proving the title the alleged document is more than sufficient. In other words, it is true that the documents, now enclosed with the application may be helpful for the petitioner for proving his

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possession. However, since the suit is filed in the year 2007, it is necessary for the petitioner to prove his title and possession, pertaining to the period before 2007.

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But in this case, the petitioner wanted to mark the doucments which were created after the institution of the suit. Where the plaintiff sues upon a document in his possession or power, he shall produce it in Court, when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. Where the plaintiff relies on any other doucments as evidence in support of his claim, he shall annexue the list of the said doucments along with the plaint. There was complete embargo on the power of the Court and any such documents could not be received in evidence at a later stage. This provision was found too harsh and so the provision has been modified by the CPC (Amendment) Act, 2002. Only after the said amendment, now such doucments may be received as evidence with the leave of the Court, which the Court shall grant in genuine cases.

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As already observed above, all the documents now enclosed along with the petitions are to prove the title of the petitioner. Since the relief of injunction is a consequential one, it cannot be said http://www.judis.nic.in 8/10

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that the doucments, which are necessary to prove the possession, are not helpful to the petitioner. Further it is the case of the petitioner that after purchase of the suit property from the second respondent, he was residing in the suit property along with the second repondent and now he is residing in the suit property till date. Further the Encumbrance Certificate, which was listed as Document No.15, is also related to the suit property, which was created before the institution of the suit. More than that, if those documents are marked as exhibits, the respondents may not be prejudiced. I am of the considered opinion that, since the applications have been filed by the petitioner in a belated stage, it is necessary to impose some costs for allowing these petitions.

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Accordingly, this Court is inclined to pass the following orders :-

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(i) The impugned order dated 18.07.2014 passed in I.A.Nos.247, 248 & 249 of 2014 in O.S.Nos.31 of 2007, on the file of

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the District Munsif cum Judicial Magistrate, Parangipettai, is set aside on condition that the petitioner shall pay a sum of Rs.3,000/- (Rupees three thousand only) as costs, to each of the respondents, within a period of two weeks from the date of the receipt of a copy of this Order.

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(ii) After the above said payment, the learned District Munsif-

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cum-Judicial Magistrate, Parangipettai, is directed to hear the matter on day to day basis and dispose of the same as early as possible preferably within a period of three months.

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