G. Govindarajan v. G. Santhanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 04.04.2016
CORAM
THE HONOURABLE Mr. JUSTICE P.R.SHIVAKUMAR C.R.P.[PD] No.1041 of 2016 and C.M.P.No.5820 of 2016 G.Govindarajan ... Petitioner Vs G.Santhanam ... Respondent Civil Revision Petition filed under Article 227 of the Constitution of India against the order and decretal order dated 12.09.2015 made in I.A.No.9800 of 2015 in O.S.No.8126 of 2010 on the file of the XV Assistant City Civil Court, Chennai. For Petitioner : Mr.Siva Suyambu
O R D E R
This petition stands listed today for admission. The arguments advanced by Mr.Siva Suyambu, learned counsel for the petitioner are heard. The certified copy of the impugned order of the trial Court dated 12.09.2015 and the copies of the connected papers produced in the form of typed set of papers are also perused.
2. The Original Suit No.8126 of 2010 pending on the file of the trial Court is one filed by the respondent herein for permanent injunction regarding the property described in the plaint schedule and for a mandatory injunction to demolish the construction put up by the petitioner herein, allegedly encroaching upon the western
border of the suit property to a width of one foot and for cost. The revision petitioner/ the sole defendant therein is contesting the suit. The case is in the part heard stage.
3. While the defendant was in the box deposing as D.W.1, during crossexamination, he admitted that he demolished the old building that was in the property adjoining the suit property and put up a new construction. When a question was put in the cross-examination, as to whether any planning permission was obtained, he claimed that he applied for planning permission and obtained sanction from the Corporation. The respondent herein/plaintiff disputes the same. In addition, he is of the view, even if the planning permission could have been obtained, the construction would not be in accordance with the planning permission. The respondent herein wanted the petitioner in the revision to produce the planning permission. Accordingly, he filed Interlocutory Application No.
9800 of 2015 for a direction to the revision petitioner herein/defendant to produce the building plan approved by the Corporation of Chennai, which was referred to by the revision petitioner herein while deposing as D.W.1., namely the building plan with reference to the property abutting on the western border of the plaintiff's property shown as the suit property.
4. Direction to produce the plan with reference to which property has been made clear in the supporting affidavit and in the petition, despite the fact that no separate schedule of property has been provided in the interlocutory application.
A conjoint reading of the affidavit, petition and the plaint, makes it clear that the property abutting the plaintiff's property shown as the plaint schedule property on its West, is the property claimed by the respondent herein to be his property. The petitioner herein/plaintiff also does not dispute it. On the other hand, since the respondent herein while deposing as D.W.1 claimed that he had obtained planning permission for demolishing the old structure and putting up a new construction in his property, which is abutting the suit property on the West. The respondent herein/ plaintiff chose to seek a direction to the revision petitioner to produce the planning permission obtained from the Corporation for the building, admittedly to be built up by him, after demolishing the old structure in the property abutting the suit property on its West.
5. Of course, it is true that the opposite party to the suit cannot be compelled to produce a document which is in his custody. But, when he does not produce such a document, even after service of notice to produce the same or an order directing production of the same, the same will lead to an adverse inference. With the said clarification, the order of the trial Court deserves to be confirmed, as there is no valid ground for interfering with the same. Accordingly, the Civil Revision Petition is dismissed, subject to the clarification indicated supra. No costs. Consequently, the connected Miscellaneous Petition is closed.
04.04.2016
gya To The XV Assistant Judge, City Civil Court, Chennai.
P.R.SHIVAKUMAR, J.
gya C.R.P.[PD] No.1041 of 2016 and C.M.P.No.5820 of 2016 04.04.2016