Mr. V. Palani vs P. Balasubramaniam

M. Venugopal, J.—The Civil Revision Petitioner/Plaintiff/Appellant has preferred this Civil Revision petition against the order dated

20.07.2009 made in I.A. No. 56 of 2008 in A.S. No. 105 of 2006 by the learned Additional Subordinate Judge, Chengalpattu in dismissing the

application filed by the Revision Petitioner/Appellant under Rule 74(2) of the Civil Rules of Practice read with Section 151 C.P.C praying for

issuance of subpoena to the learned Additional Subordinate Judge''s Court''s office at Chengalpattu to produce all connected papers and records

pertaining to E.P. No. 95 of 2001 in O.S. No. 5677 of 1996 on the file of VI Assistant City Civil Court, Madras.

The first appellate Court, namely, learned Additional Subordinate Judge, Chengalpet while passing orders in I.A. No. 56 of 2009 has opined

that the present Interlocutory application has been filed with a view to extend the pending appeal proceedings and further that before the trial Court

Ex.B.8 has already been marked and further that witnesses have been examined, and when objection has not been raised in regard to Ex.B.8

before the trial Court and added further there is possibility of obtaining certified copies and when the appeal has been posted for hearing of

arguments and at that time, the present application has been filed without proper reason and resultantly, dismissed the application.

The learned Counsel for the Revision Petitioner/Appellant/plaintiff urges before this Court that the order passed by the learned first appellate

Authority in I.A. No. 56 of 2009 dated 20.07.2009 dismissing the same is one without jurisdiction and the learned first appellate Authority has not

taken into account of the fact that the Revision petitioner/Appellant is contending that the decree in O.S. No. 5677 of 1996 on the file of VI

Assistant City Civil Court is one without jurisdiction and cannot be enforced in the eye of law and further more, the Revision petitioner is not a

party to the previous proceedings and in fact, the decree in O.S. No. 5677 of 1996 has been obtained by fraud and these aspects of the matter

have not been looked into and analysed in proper perspective by the learned first appellate Authority, which has resulted in miscarriage of justice

and therefore, prays for allowing the Civil Revision Petition to prevent aberration of justice.

Per contra, the learned Counsel for the Respondent/Respondent/Defendant submits that the Revision petitioner has not whispered in his affidavit

in I.A. No. 56 of 2009 as to why he has not been in a position to obtain the copies of records required by him and in the absence of the same, the

application filed by the Revision petitioner deserves to be dismissed and as a matter of fact, he supports the order of the learned first appellate

Authority in dismissing the application in I.A. No. 56 of 2009 on all aspects.

It is to be bear in mind that Rule 74 of the Civil Rules of Practice speaks of production of records in the custody of Court, which runs thus:

Production of records in the custody of a Court: (1) An application for the production of records in the custody of a Court, shall specify the

particular documents required to be produced. Unless it is made to appear to the Court that the production of the original documents is necessary,

the party shall be required to obtain and file copies thereof and the original shall not be sent for. If the court dispenses with the affidavit mentioned

in Rule 10(2) of Order XIII of the Code it shall record in writing the reasons for so doing.

2) When a court finds it necessary to require the production of the records of another court, it shall address a letter of request in Form No. 22 to

the presiding judge of that Court.

3) Where the document to be sent for by a court either from its own records or from those of another court under Rule 10 of Order XIII of the

Code is an account book or other document not being a record (i.e. judgment, decree, written statements etc.,) which has to be in the custody of a

court and belongs to a person other than a party at whose instance it is sent for the court may require the party to deposit in court before the letter

of request is issued, such sum as it may consider necessary to meet the estimated cost of making a copy of the document when produced.

(4) When the letter of request is to be issued by the court itself acting on its own motion, it shall be open to the court to call upon either party to

make the deposit as aforesaid.

(5) On the production of the document in compliance with he letter of request, the court shall cause a notice to be affixed to the notice board that

the document has been received and that the parties may apply to the court for inspection of the same. The court shall not grant inspection to either

party, unless it is satisfied that the application is made with the consent of the person to whom the document belongs. After the document has been

admitted in evidence, the court shall unless it considers it necessary to retain the original, direct the parties to specify the portion or portions thereof

on which they respectively rely, and require a copy to be made of the same at the expense of the party requiring such portion and shall thereafter

with all convenient speed, return the original to the court from which it was received, retaining the copies as part of the record.

Note; Rule 10 of Order XIII of the Code allows a court, of its own accord or on application, to send for records, but requires that every

application be supported by an affidavit showing that the records is material and the copies cannot be obtained. The Court should bear in mind the

labour which such calls entail and should only make them when satisfied that the records are really needed.

At this stage, it is to be noted that Rule 74(3) of the Civil Rules of Practice confers power in a court of law to require the party to deposit in

court before the letter of request is issued, as the same is, it may consider necessary to meet the estimated cost of asking a copy of the document

when produced. As a matter of fact, the Revision petitioner in the affidavit in I.A.56 o 2009 has not whispered any thing as to the reason why he

has not been in a position to obtain the copies of documents sought for.

In this connection, it is not out of place for this Court to point out that in a processual system of jurisprudence, a Court of law is to deliver

substantial justice to the parties over-riding technicalities to sub-serve the ends of justice. Hence, this Court by taking a lenient view and not

adopting pedantic approach, directs the first appellate Court, namely, additional Subordinate Judge, Chengalpet to issue subpoena to his office at

Chengalpet to produce all connected records pertaining to E.P. No. 95 of 2005 in O.S. No. 5677 of 1996 and on receipt of the same, shall

proceed with hearing of the appeal in A.S. No. 105 of 2006 pending on its file and to dispose of the said appeal within a period of one month from

the date of receipt of records, after providing due opportunities to both parties. It is also, made clear that the first appellate Court/learned

Additional Sub Judge, Chengalpet can hear the respective sides in regard to the marking of connected records in E.P. No. 95 of 2005 as Exhibits

subject to proof and relevancy if the exigency of situation requires and report compliance of the disposal of the appeal to this Court within a time

frame fixed by this Court.

In fine, with the above directions, this Civil Revision petition is disposed of. Connected miscellaneous petition is closed. There shall be no order

as to costs.