Lakshmi & ANR. Vs.
Chinnammal @ Rayyammal & Ors.  INSC 701 (8 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2243 OF 2009 (Arising
out of SLP (C) No.5026 of 2007) Lakshmi & Anr. ... Appellants Versus
Chinnammal @ Rayyammal & Ors. ...
S.B. Sinha, J.
Mechanics' involving interpretation of Order XIII Rule 10 of the Code of Civil
Procedure, 1908 (hereinafter called and referred to for the sake of brevity as
the `Code') falls for consideration in this appeal which arises out of a
judgment and order dated 5.1.2007 passed by a learned 2 Single Judge of the
High Court of Judicature at Madras in CRP No.559 of 2005.
hereto are co-sharers. Allegedly, a deed of partition was entered into by and
between them on or about 28.11.2002. Questioning the genuineness of the said
deed of partition, a suit for cancellation thereof was filed by the appellant
therein. Indisputably, in relation thereto, a First Information Report was also
lodged. During investigation, the Investigating Officer recovered the purported
original deed of partition from the custody of the respondent. It was sent for
examination to the Forensic Science Laboratory, Chennai.
filed an application in the said suit marked as IA No.1 of 2005 calling for the
report of the forensic expert from the Court of Judicial Magistrate,
Sathyamangalam as regards the purported signatures of the petitioner. The said
application was allowed by the learned Trial Judge. In the meantime, allegedly
a second report with regard to the of thumb impression of the petitioner on
15.2.2005 was also received from the Forensic Science Laboratory. He filed a
similar application under Order XIII Rule 10 of the Code before the learned
Trial Judge. By an order dated 8.3.2005, the Trial Court rejected the said
application, stating :
3 "But the
petition does not contain the details such as serial number and the date of the
documents which are requested to be sent for. The petition does not mention
that the documents are the records of Crime No.699/2003 or the related records.
It has not been stated in both the petition and the counter statement that the
investigation is over. Only the crime number has been mentioned in the
petition. Since it has not been stated on behalf of the petitioner that the
investigation is over and that the final report has been filed in this regard,
and that it is not possible for the court to ask from time to time the
documents which are in their possession as a result of investigation and that
the provisions of Order XIII Rule 10 of CPC do not empower the civil court to
direct the production of document which are in the custody of police and that
it has not been stated whether such document have been filed and kept on the
file of the court of judicial Magistrate and that the issue whether the
partition deed is false or true to be established by examining witnesses and it
is the responsibility of the plaintiff in this regard and after that the
examination of witnesses of both plaintiff and defendant are not over and that
keeping in mind the objections raised by the respondents/defendants that the
petitioners/ plaintiffs are in collusion with the Sathyamangalam Police and
that it is not possible to send for the documents with the police when the
investigation is not over and that the plaintiff could establish the falsity of
the partition deed by other witnesses and other documents and for the said
reasons the petition is not acceptable and having decided so."
application under Article 227 of the Constitution of India filed thereagainst
has been dismissed by the High Court by reason of the impugned judgment.
Vijay Kumar, learned counsel appearing on behalf of the appellant, would submit
(1) The learned Trial Court and consequently the High Court committed an error
in observing that the details of the criminal case as also the court wherein it
had been pending was not disclosed by the appellant.
(2) Order XIII Rule
10 of the Code having wide application and having been enacted to further the
ends of justice and avoidance of multiplicity of proceedings, the same should
(3) The genuineness
and authenticity of the partition deed dated 28.11.2002 being in issue in the
suit, the appellants were entitled to call for the report of the expert to
prove their case.
V. Prabhakaran, learned counsel appearing on behalf of the respondent, on the
other hand, would submit:
(i) By directing the
criminal court to transfer the evidence collected by the investigating officer
the proceeding before the criminal 5 court shall remain stayed, the impugned
order should not be interfered.
(ii) Appellant should
have obtained the certified copy of the report and filed it before the civil
court, which having not been done, the impugned judgment cannot be faulted
having not been able to establish that the report in question was necessary for
proving their case, this Court should not exercise its discretionary
jurisdiction under Article 136 of the Constitution of India.
XIII of the Code provides for production, impounding and return of documents.
Rule 1 of the said Order mandates production of original documents by the
parties at or before the settlement of issues. Rule 9 of the Order XIII
provides for return of admitted documents. Rule 10 empowers the Court to send
papers from its own records or from other courts. It reads as under :
"10. Court may
send for papers from its own records or from other Courts.--(1) The Court may
of its own motion, and may in its discretion upon the application of any of the
parties to a suit, send for, either from its own records or from any other
Court, the record of any other suit or proceeding, and inspect the same.
(2) Every application
made under this rule shall (unless the Court otherwise directs) be supported by
an affidavit showing how the record is material to the suit in which the
application is made, and that the applicant cannot without unreasonable delay
or expense obtain a duly authenticated copy of the record or of such portion
thereof as the applicant requires, or that the production of the original is
necessary for the purposes of justice.
(3) Nothing contained
in this rule shall be deemed to enable the Court to use in evidence any
document which under the law of evidence would be inadmissible in the
in their application disclosed the following facts :
1) That a First
Information Report was lodged on 1.11.2003 against the defendants. The same was
registered as Crime No.699/03.
2) The original
partition deed dated 28.11.2002 was sent to the Director, Forensic Science
Department along with appellant's admitted signatures by the Court of Judicial
Magistrate, Sathyamangalam at the request of the Investigating Officer.
3) Plaintiffs have
come to learn that a report of the expert was also filed therein in regard to
the thumb impression of the appellants.
that view of the matter by the appellants, the learned Trial Judge, in our
opinion, committed a manifest error in holding that requisite particulars have
not been furnished.
the learned Trial Judge himself had allowed a similar application so far as the
opinion of the handwriting expert was concerned.
It is, therefore,
difficult to comprehend as to on what basis a similar prayer made by the
appellant in regard to the opinion of the finger print expert could be held to
be not maintainable.
bringing on record a document is essential for proving the case by a party,
ordinarily the same should not be refused; the Court's duty being to find out
the truth. The procedural mechanics necessary to arrive at a just decision must
be encouraged. We are not unmindful of the fact that the court in the said
process would not encourage any fishing enquiry. It would also not assist a
party in procuring a document which he should have himself filed.
cannot furthermore be any doubt that by calling for such documents, the Court
shall not bring about a situation whereby a criminal proceeding would remain
stayed as it is a well settled principle of law that 8 where a Civil
proceeding as also a Criminal proceeding is pending, the latter shall get
In Anil Behari Ghosh
v. Smt. Latika Bala Dessi & Ors. [AIR 1955 SC 566], it is stated :
counsel for the contesting respondent suggested that it had not been found by
the lower appellate court as a fact upon the evidence adduced in this case,
that Girish was the nearest agnate of the testator or that Charu had murdered
his adoptive father, though these matters had been assumed as facts. The courts
below have referred to good and reliable evidence in support of the finding
that Girish was the nearest reversioner to the estate of the testator. If the
will is a valid and genuine will, there is intestacy in respect of the interest
created in favour of Charu if he was the murderer of the testator. On this
question the courts below have assumed on the basis of the judgment of
conviction and sentence passed by the High Court in the sessions trial that
Charu was the murderer. Though that judgment is relevant only to show that
there was such a trial resulting in the conviction and sentence of Charu to
transportation for life, it is not evidence of the fact that Charu was the
murderer. That question has to be decided on evidence."
In Shanti Kumar Panda
v. Shakuntala Devi [(2004) 1 SCC 438], this Court held :
9 "(3) A
decision by a criminal court does not bind the civil court while a decision by
the civil court binds the criminal court. An order passed by the Executive
Magistrate in proceedings under Sections 145/146 of the Code is an order by a
criminal court and that too based on a summary enquiry. The order is entitled
to respect and wait before the competent court at the interlocutory stage. At
the stage of final adjudication of rights, which would be on the evidence
adduced before the court, the order of the Magistrate is only one out of
several pieces of evidence."
a Civil Suit, a document has to be proved. The report of an expert is also
required to be brought on record in terms of the provisions of the Indian
Evidence Act. Having regard to the provisions contained in Order XIII, Rule 8
of the Code, the Civil Court would furthermore be entitled to substitute the
original document by a certified copy. We, therefore, fail to appreciate as to
why the said original document could not be called for.
We may notice that a
Division Bench of the Calcutta High Court in Union of India & Anr. v. The
State & Anr. [1961 XLII ITR 753] held that a document may also be called
for from the authorities under the Income Tax Act, stating :
"Further, it may
be pointed out that Order XIII, rule 10(I) of the Civil Procedure Code does not
refer to a judicial proceeding. It refers to a suit or 10 proceeding. Even if
the proceeding in connection with the issue of a search warrant under the
Foreign Exchange Regulation Act be considered a non-judicial proceeding on the
part of the Magistrate, such a non-judicial proceeding would still be within
the scope of Order XIII, rule 10(1) of the Civil Procedure Code. In the
circumstances, we cannot accept the contention of Mr. Dutta that as there was
no proceeding before the Chief Presidency Magistrate the requisition no
proceeding before the Chief Presidency Magistrate the requisition under Order
XIII, rule 10 of the Civil Procedure Code made by the Income-tax Officer would
not be a valid requisition."
In Kailash v. Nanhku
& Ors. [(2005) 4 SCC 480], this Court has categorically held :
"All the rules
of procedure are the handmaid of justice. The language employed by the
draftsman of processual law may be liberal or stringent, but the fact remains
that the object of prescribing procedure is to advance the cause of justice. In
an adversarial system, no party should ordinarily be denied the opportunity of
participating in the process of justice dispensation. Unless compelled by
express and specific language of the statute, the provisions of CPC or any
other procedural enactment ought not to be construed in a manner which would
leave the court helpless to meet extraordinary situations in the ends of
In Uday Shankar
Triyar v. Ram Kalewar Prasad Singh & Anr. [(2006) 1 SCC 75], it was
Non-compliance with any procedural requirement relating to a pleading,
memorandum of appeal or application or petition for relief should not entail
automatic dismissal or rejection, unless the relevant statute or rule so
and irregularities which are curable should not be allowed to defeat
substantive rights or to cause injustice. Procedure, a hand-maiden to justice,
should never be made a tool to deny justice or perpetuate injustice, by any
oppressive or punitive use. The well recognized exceptions to this principle
i) where the Statute
prescribing the procedure, also prescribes specifically the consequence of
ii) where the
procedural defect is not rectified even after it is pointed out and due
opportunity is given for rectifying it;
iii) where the
non-compliance or violation is proved to be deliberate or mischievous;
iv) where the
rectification of defect would affect the case on merits or will affect the
jurisdiction of the court.
v) in case of
Memorandum of Appeal, there is complete absence of authority and the appeal is
presented without the knowledge, consent and authority of the appellant."
view of the aforementioned pronouncements, we are of the opinion that the
learned Trial Judge should have acceded to the prayer of the appellants herein.
impugned judgment, therefore, cannot be sustained. It is set aside accordingly.
The appeal is allowed. No costs.
[Dr. Mukundakam Sharma]