PR.Palaniappan v. T.R.Rathineswaran & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20.04.2009CORAM :THE HONOURABLE MR.JUSTICE D.MURUGESANandTHE HONOURABLE MR.JUSTICE C.S.KARNANO.S.A. No.322 of 2008and M.P.Nos.1 to 3 of 20081. PR.Palaniappan2. PR.Veerappan.. Appellants-vs-1. T.R.Rathineswaran2. RM.Visalakshi3. RM.Periakaruppan4. RM.Meyyammai (Minor)5. PR.Alagappan .. Respondents(Rep.by her mother and natural guardian ofRM.Visalakshi 2nd Respondent)Appeal petition filed under Order 36 Rule 11 of O.S. Rules R/wclause 15 of the Letters patent against the order dated 30.09.2008passed by this Court in O.A.No.4281 of 2008 in C.P.No.710 of 2002. todirect the Collector of Chennai to produce forthwith the followingdocuments (i) 'A' Register relating to the old Survey No.157 and 158,110 Saligramam Village, Chennai along with Chitta and Adangal & (ii)Correlation Statement of Town Survey No.22, 110 Saligramam Village,Chennai in Compliance with the order of this Hon'ble Court made inApplication No.96 of 2004 dated 21.06.2004.For Appellants:Mr.PL.NarayananFor Respondents:Mr.V.T.Gopalan, S.C.For Mr.P.Senthil Kumar for R-1:No appearance for othersJ U D G M E N T(Delivered by D.MURUGESAN, J.)The appellant filed a suit for permanent injunction restrainingthe first and second defendants, their agents and servants, anyperson, every person, claiming under them either directly or https://hcservices.ecourts.gov.in/hcservices/ indirectly from dealing with the suit properties morefully describedin the Schedule. Apparently, the suit was laid based on two saledeeds dated 8.12.1960 and 20.2.1961. While the two sale deeds werefiled in support of the plaint under Order VII Rule 14(1) of C.P.C.,the appellant had only filed photo copies of those two sale deeds.The respondents approached this Court by filing two applications inA.Nos.4148 and 4149 of 2003. In Application No.4149 of 2003, therespondent had prayed for a direction to the appellants/plaintiffs toproduce original sale deeds dated 8.12.1960 and 20.2.1961. Therewere certain allegations made in respect of those documents, which weare not inclined to go into at this stage, as any discussion andfinding may affect the rival stands of both the appellants andrespondents in the suit. The said application was opposed on theground that the appellants had filed certificate copies of the saledeeds, which are admissible piece of evidence. Nevertheless, byorder dated 21.6.2004, the said application was ordered on thefollowing direction:-"2.This is an application taken out to direct theplaintiff/respondent to produce the original sale deed dated8.12.1960 and 20.2.1961. The learned counsel appearing forthe plaintiff submits that he has got reasonableapprehension that the defendant will try to snatch away ordestroy these documents on the way to court and prayssufficient police protection. Considering the sensitivenature of the case, the Commissioner of Police, ChennaiMetropolitan City is directed to give necessary policeprotection to the learned counsel for the plaintiffMr.PL.Narayanan from 8.00 a.m. to 28.6.2004 till 6.00 p.m.on the same day and the police protection should beavailable throughout to him on that day."2.On the ground that the said direction was not complied with andthe appellant did not produce the two sale deeds before this Court,the respondents filed another application in A.No.4281 of 2008. Itis alleged in the affidavit filed in support of the said petitionthat the appellants/plaintiffs had approached the Court with uncleanhands and the plaint documents are fabricated and bogus. The earlierdirection to produce those documents were also not complied withclearly indicating that the original sale deeds are fabricated andbogus. The said petition was opposed by filing a counter-affidavit,wherein it is stated that pursuant to the direction, the sale deedswere produced before the learned Master and the same were inspectedby the applicants' then counsel. On considering the rival claims,the learned Judge, by order dated 30.09.2008, had directed theproduction of those original sale deeds in compliance of the earlierorder dated 21.06.2004 within one week from the date of the saidorder. It is against the said order, the present appeal has beenpreferred. https://hcservices.ecourts.gov.in/hcservices/

3.We have heard Mr.PL.Narayanan, learned counsel appearing forthe appellants and Mr.V.T.Gopalan, learned senior counsel appearingfor the respondents.4.In our considered view, the appellants must succeed in theappeal for more than one ground. It is the specific contention ofthe respondents that the earlier order dated 21.6.2004 was notcomplied with, as the appellants did not produce the original saledeeds before the Court. Though a specific averment was made by therespondents in the affidavit filed in support of the petition, thesame was not only disputed, but also a specific averment was made bythe appellants/plaintiffs that the documents were produced before thelearned Master, which were inspected by the applicants' then counsel.The said averment made by the appellants has not been furtherdisputed by the respondents herein.5.Mr.V.T.Gopalan, learned senior counsel, would however submitthat the purport of the order dated 21.6.2004 is not for a mereproduction of the sale deeds, but for filing those documents intoCourt. In this context, we may refer to the earlier order dated21.6.2004. The application was taken out to direct the plaintiffs toproduce those sale deeds. The learned Judge had directed the policeprotection for the counsel for the plaintiffs to enable them toproduce those documents before the Court, as there was anapprehension on the part of the plaintiffs that the defendants maytry to snatch away or destroy those documents. Neither in theapplication nor in the direction, we could see that theappellants/plaintiffs were ordered to file those documents into theCourt. Therefore, the contention that failure on the part of theappellants to file those documents into Court is unacceptable,especially in the wake of specific uncontroverted averment made inthe counter that those documents were produced and were inspected bythen counsel for the respondents.6.Coming to the affidavit filed in support of the application inA.No.4281 of 2008, as we have mentioned, the two basic averments forsuch application are that the plaint documents in question are forgedand bogus and the appellants had failed to comply with the earlierdirection. Except those averments, it is not pleaded that thosedocuments are necessary for perusal in order to file an applicationto reject the plaint. In the absence of any such pleadings, thelearned Judge had proceeded to order the petition on the ground thatthe production of these documents are necessary for the respondentsto file an application to reject the plaint, which, in our consideredview, cannot be ordered. In this context, it may be useful to referthe judgment of the Supreme Court in Union of India v. E.I.D. Parry(India) Ltd. [AIR 2000 SC 831].7.Mr.V.T.Gopalan, learned senior counsel appearing for therespondents would submit that in terms of Order VII Rule 14(1) of the https://hcservices.ecourts.gov.in/hcservices/ amended Civil Procedure Code, in the event the plaintiff sues upon adocument or relies upon a document in his possession, he shall entersuch documents in a list and also shall produce it in Court when theplaint is presented by him and shall, at the same time, deliver thedocument and a copy thereof, to be filed with the plaint. Hence, itis mandatory for the plaintiffs not only to refer those documents inthe list of documents, but also to produce the original documents inCourt. In the event, such documents are not filed, certainly thedefendants would be entitled to maintain the application forproduction of such documents in Court.8.We have carefully considered the said submission and we areunable to agree with the same. Sub Rule 3 of Rule 14 under Order VIIcontemplates that a document which ought to be produced in Court bythe plaintiff when the plaint is presented, or to be entered in thelist to be added or annexed to the plaint but is not produced orentered accordingly, shall not, without the leave of the Court, bereceived in evidence on his behalf at the hearing of the suit. Acombined reading of Sub Rules (1) and (3) of Rule 14 under Order VIIwould show that the production of documents is not mandatory for theplaintiff and those documents may be permitted to be produced, ofcourse, by the leave of the Court at a later point of time, i.e. atthe hearing of the suit. Of course, when the plaintiff approachesthis Court for leave based on certain documents, it is for him toproduce those documents and if those documents are not produced, thenhe will face the consequences. That does not mean that the defendantcan, by an application, compel the plaintiff to produce thedocuments, which are in possession of the plaintiff, invoking OrderVII Rule 14(1) C.P.C. In fact, the counter-affidavit filed by theappellants/plaintiffs in the earlier application in 4149 of 2003, itis stated that they have filed the photo copies of the original,necessarily meaning thereby that they are in possession of theoriginal documents. There appears to be some apprehension on thepart of the appellants that in the event those documents are filedinto the Court, they may be tampered with. Therefore, they arewithholding the documents. In the event those documents are filedinto Court at a later point of time, i.e. at the time of trial of thesuit, it is open to them to convince the Court as to whether thosedocuments are to be filed or not and it is equally open to thedefendants also to oppose such documents on all available fours.Therefore, we are of the opinion that in exercise of the provision ofOrder VII Rule 14(1) C.P.C., the defendants cannot compel theplaintiffs to file certain documents, which are the basis for theplaint, as the said production is only directory and cannot beconstrued to be one of mandatory, in the wake of Sub Rule 3 of Rule14 under Order VII.9.Though respective counsel had argued much on the impersonationof one C.T.Nachiappan, the first defendant, and fabrication of thetwo sale deeds in question, we are not inclined to express any https://hcservices.ecourts.gov.in/hcservices/ opinion, as already stated, as the same would affect the rivalcontentions of the parties in the suit. For the above two grounds,which we have relied upon, we are inclined to allow the appeal.Accordingly, the appeal is allowed and the impugned order is setaside. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sraToThe Sub Assistant Registrar,Original Side, High Court,Madras-104.+ 1 CC To Mr.PL.Narayanan, Advocate SR NO.15931+ 1 CC To Mr.P.Senthil Kumar, Advocate SR NO.15847O.S.A.No.322 of 2008SSN {CO}TP/28.4.2009.