Mrs.P.Chockammal @ P.Sokkamma v. Mr.P.Chandrasekar
/ 1 /
IN THE HIGH COURT OF JUDICATURE AT MADRAS
(ORDINARY ORIGINAL CIVIL JURISDICTION) TUESDAY, THE 11th DAY OF SEPTEMBER 2018 THE HON'BLE DR. JUSTICE ANITA SUMANTH A.No.6065 of 2018 in C.S.NO.653 of 2011
1. P.Chandrasekar No.304, Krishna Building, St.Antoony Road, Kalena, Bombay 98
2. R.Jagathi Green Gardens, 388/6, 'L' Blcok, Annanagar, Chennai-102.
3. M.Jamuna Retreat Building, 119, G.N.Chetty Road, 3rd Floor, Flat No.3B, T.Nagar, Chennai 17.
...Plaintiffs -vs1. Mrs.P.Chokkammal alias P.Sokkamma (*)(Deceased) No.3/6, Arvind Nagar, Kalina, Bombay-29.
2. P.Kumar No.3/6 Arvind Nagar, Kalina, Bombay-29.
3. P.Ramesh No.3/6 Arvind Nagar, Kalina, Bombay 29.
(*) (Plaintiffs and defendants 2 & 3 are recorded as legal heirs of the deceased 1st Defendant as per order dated 11.02.16 on memo dated 07.08.2015 in C.S.No.653 of 2011) ... Defendants A.No.6065 of 2018 Mrs.P.Chokkammal @ P.Sokkamma (Deceased legal heirs on records) W/o.Palani Achari, No.3/6, Arvind Nagar,
/ 2 / Kalina, Bombay-29.
2. P.Kumar No.3/6 Arvind Nagar, Kalina, Bombay-29.
3. P.Ramesh No.3/6 Arvind Nagar, Kalina, Bombay 29.
...Applicants/Defendants VS
1. P.Chandrasekar No.304, Krishna Building, St.Antoony Road, Kalena, Bombay 98
2. R.Jagathi Green Gardens, 388/6, 'L' Blcok, Annanagar, Chennai-102.
3. M.Jamuna Retreat Building, 119, G.N.Chetty Road, 3rd Floor, Flat No.3B, T.Nagar, Chennai 17.
...Respondents/Plaintiffs
This Application praying that this Hon'ble Court be pleased to grant leave to produce the documents of the defendants set out in the schedule hereunder as evidence before this Hon'ble Court.
This Application coming on this day before this court for hearing in the the court made the following order: The suit has been filed by the respondents/plaintiffs seeking a decree and judgment alloting 1/6th share in the suit schedule property by metes and bounds to each of the plaintiffs as well as a declaration that settlement deed dated 23.01.2007 bearing Document No.14 of 2007 registered before the Sub-Registrar T.Nagar is null and void and for costs of the suit.
2. Issues have been framed and the suit has been referred to trial before Additional Master IV. Pending
/ 3 / trial, the first defendant, being the mother of the plaintiffs and defendants 2 and 3 passed away on 24.12.2013.
3. The present application has been filed by defendants 2 and 3 in suit, seeking leave of this Court to produce various documents as described herein as evidence.
4. The documents in respect of which leave is sought are:- S.No.
Date Particulars Details 19.05.19 Agreement of sale in favour Original of chokkammal 25.07.19 Sale deed executed by Original K.R.Srinivasan Iyangar in favour of Chokkammal 12.12.19 Extract from Town Survey Original Land Register 16.06.19 Certificate of Registration Copy of Palani Achari as goldsmith Form - 5 of Madras Urban Original Land Tax Act, 1966 T.Nagar Co-operative bank Copy Pass Book issued to Chokkammal 1977-86 T.Nagar Co.op Bank Pass Original Book issued to Chokkammal.
1989Pass Book of Chokkammal of Original Bank of Baroda 1982/83 Income Tax Assessment of Copy P.Chokkammal.
01.10.19 Will executed by Palani Copy Achari 21.03.19 Property valuation report Original of suit property.
21.06.19 Death certificate of Palani Original Achari
/ 4 / S.No.
Date Particulars Details 2002Bank of Baroda Pass Book of Original P.Chokkammal 23.01.20 Settlement deed executed by Original Chokkammal in favour of P.Ramesh 08.03.20 Order name transfer in Original favour of P.Ramesh 25.06.20 Patta issued to P.Ramesh Original 2010Property Tax issued to the Original P.Ramesh 2015Chennai Metro Water and Original Sewerage card issued to Ramesh
5. The sole justification for the non-filing of the documents along with the written statement as required in terms of Order VIII Rule 1 of the Civil Procedure Code (CPC) is that the applicants are themselves based in Bombay whereas the documents were spread over between Chennai and Bombay.
6. A counter has been filed by the third plaintiff/third respondent, objecting to the relief sought for in the application. Reliance is placed upon the provisions of Rule 1(A) of Order VII specifically sub-rule
(2) thereof, that casts a duty upon the applicants seeking the relief now sought for, to specifically state in whose possession or power the documents sought to be filed were found. In the present case, there is no averment either in the written statement or in the application to indicate in whose possession or power the documents were, or were found.
7. The respondent also points out that the present documents do not find reference in the written statement: It is argued that the application is wholly belated seeing as it has been filed after the plaintiffs' evidence has
/ 5 / been closed. Further document no. 10 is an unprobated will and cannot be sought to be marked as a document unless proven.
8. It is also pointed out that no application has been filed seeking condonation of the period that has elapsed between the filing of the written statement and the filing of the present application. Various contentions have been raised touching upon the merits of the matter to which I rerain from adverting.
9. A series of decisions of learned Single Judges of this Court to the effect that delay in the production of the documents has to be justified by the applicant have been relied upon by the respondents. (Orders dated 03.01.2018 in C.R.P.(PD) No.706 of 2015, 03.01.2018 in C.R.P.(PD) No.696 of 2015 and 28.11.2016 in C.R.P.(PD) No.2459 of 2012).
10. In reply, learned counsel for the applicant, with respect to the specific objection to the unprobated will assures the court that the intention of producing the will was only to rely upon the same as a collateral document and nothing further.
11. Heard Mr. Shanmuga Kani, learned counsel for the applicants and Mr. Vijayaragavan learned counsel for the defendants.
12. The provisions of order VII Rule 1(A) state as follows:
R.1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it
/ 6 / in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the defendant under this rule, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4).........
13. Rule 1(A) of Order VIII thus casts a duty upon the defendant to produce documents along with the written statement to be filed within thirty (30) days from receipt of suit summons. Sub-rule (2) specifically requires a statement by the defendant as to in whose possession or power the documents sought to be produced are, or were found. Sub-rule (3) places an embargo upon the production of a document as evidence, that has not been filed in terms of Rule 1(A)(1), except with the leave of the Court.
14. It is not the case of the present applicants that the documents sought to be produced were in their possession/power. The averment is to the effect that the documents had to be collated from various sources, to quote the applicants 'in Chennai and Bombay'. However, several of the documents enumerated in the list of documents,
/ 7 / specifically documents at sl.Nos.15 to 18 are documents that have been issued in favour of D3. There is thus no reason whatsoever as to why the documents, which are not denied to be in possession of D3, could not have been produced in time, along with the written statement.
15. The mandate cast upon the applicants by virtue of Order VII Rule 1(A) sub-rule 2 has, in my view, not been complied with.
16. The application is blissfully silent in regard to the delay that has been occasioned in seeking leave to produce the documents and in quantifying or seeking a condonation of the same. The provisions of Order VIII Rule 1 require the defendant to present a written statement within 30 days from the date of service of summons on him and the provisions of Order VIII Rule and I A (1) require all documents relied upon to be produced along with the written statement. Belated production of documents in terms of Rule 1A (3) of Order VIII thus necessarily calls for the quantification of the delay and a justification for the same. In the present case, this has not been done. The applicants in 2018, simply seek the leave of the Court to produce documents that ought to have accompanied the written statement filed as early as on 19.06.2012. This cannot be granted for the mere asking.
17. Upon a perusal of the documents sought to be filed now, it is noticed that some of the documents have already been marked, either through the plaintiffs' or defendants' witness in the course of trial thus far. They are, sale deed at serial no.2, certificate at serial No.4, bank pass book at serial no.6, income tax assessment order at serial no.9 and settlement deed at serial no.14. My consideration in the present application is thus limited to the remaining documents, being documents at sl.Nos.1,3,5,7,8,10,11,12,13,and 15 to 18.
18. I may state at this juncture that the written
/ 8 / statement filed by D2 has been adopted by D3 and there is no explanation or reference to the aforesaid documents in the written statements filed by either of the defendants.
19. The provisions of Rule 1A of Order VIII have been inserted in the Civil Procedure Code by the Amendment Act 2002 with effect from 1.7.2002. The notes on clauses in the Bill introducing the Amendment states thus: 'Order VIII of the Code provides for written statement and set-off. Clause 18 seeks to substitute rule 1 of Order VIIII to provide a fixed time-frame within which pleadings are to be completed. The new provisions required the defendant to present a written statement within thirty days from the date of service of summons on him. Clause 18 inserts rule 1A to make it a duty of defendant to produce documents upon which relief is claimed or relied upon by him. Rule 1A requires the defendant to produce documents in his possession in the court and deliver the document or a copy thereof when the written statement is presented by him. Rule 1A further requires in case a document or copy thereof is not filed with the written statement, it shall not be allowed to be received in evidence on behalf of defendant at the hearing of the suit.'
20. The purpose of the amendment is thus evidently to fix a specific time frame within which pleadings are to be completed. Any deviation from the said time frame will have to be justified and the provision itself strictly construed strictly. The grant of extended time to produce documents in terms of Rule 1A requires the satisfaction of
/ 9 / twin conditions (i) a statement as to in whose possession or power the documents were or were found and (ii) an explanation for the delay in entering such documents in the suit proceedings. The present application is silent as to both requirements.
21. In the aforesaid circumstances, the application is dismissed.
22. Trial was ongoing before Additional Master IV that stood interrupted by virtue of the filing of the present application. Trial shall resume forthwith with the parties appearing before Learned Additional Master IV on 19.09.2018. The proceedings are directed to be completed within a period of four months from the said date. Sd./- A.S.M.J 11.09.2018 //Certified to be true copy// Dated at Madras this the day of 2018.
COURT OFFICER (O.S.) KY/19.09.2018 From 25th Day of September 2008 the Registry is issuing certified copies of the Orders/Judgments/Decrees in this format.