This tag is associated with 35 posts

contempt of court = Neither the High Court nor the Magisterial Court have ever applied their mind and considered the conduct of the respondent and continuance of criminal proceedings in respect of the disputes, which are civil in nature and finally adjudicated by the competent authority i.e. the Company Law Board and the High Court in appeal. We are of the definite opinion that the complainant has manipulated and misused the process of Court so as to deprive the appellants from their basic right to move free anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of alleged breach of a Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No.7 of 2007 to continue would be an abuse of the process of the Court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law. Although we do not appreciate the action of a senior Superintendent of Police, but in view of the order passed in these appeals, we do not want to proceed any further in Contempt Petition (C) No.166 of 2013, which stands disposed of.


whether or not the rights of a bona fide purchaser get curtailed if the ex-parte decree on the basis whereof the auction sale was conducted is eventually set aside. The Debt Recovery Appellate Tribunal examined the matter afresh and held that the appellants-auction purchasers were not bona fide purchasers of the property as they were aware of the pending legal proceedings between the bank and the borrower. The Tribunal accordingly set aside the sale with a direction to the defendants-respondents 1 to 3 to deposit the entire amount claimed in original application.= “57. (1) On every sale of immovable property, the person declared to be the purchaser shall pay, immediately after such declaration, a deposit of twenty-five per cent on the amount of his purchase money, to the officer conducting the sale; and, in default of such deposit, the property shall forthwith be resold. (2) The full amount of purchase money payable shall be paid by the purchaser to the Tax Recovery Officer on or before the fifteenth day from the date of the sale of the property.”- The provisions of Rules 57 and 58 of the Income Tax Rules, have their equivalent in Order XXI Rules 84, 85 & 86 of the C.P.C. which are pari materia in language, sweep and effect and have been held to be mandatory by this Court; Rules 84, 85 and 86 of Order XXI were also held to be mandatory= we are of opinion that the provisions of the rules requiring the deposit of 25 per cent. of the purchase-money immediately on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non- compliance with these provisions there is no sale at all. – Rule 85 being mandatory, its non-compliance renders the sale proceedings a complete nullity requiring the executing court to proceed under Rule 86 and property has to be resold unless the judgment-debtor satisfies the decree by making the payment before the resale. The argument that the executing court has inherent power to extend time on the ground of its own mistake was also expressly rejected…”; Rules 57 and 58 of the Income Tax Rules are anything but mandatory in nature, so that a breach of the requirements under those Rules will render the auction non-est in the eyes of law.

‘ ITEM NO. 1B Court No.10 SECTION XII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No….. of 2013 @ SLP(C) No. 21765 of 2010 C.N.PARAMSIVAN AND ANR. Appellant (s) VERSUS SUNRISE PLAZA TR. PARTNER AND ORS. Respondent (s) … Continue reading

Wakf Act, 1995: s.83(5) – Wakf Tribunal – Power of – HELD: Wakf Tribunal is deemed to be a civil court and has the same powers as are exercised by civil court under the Code of Civil Procedure while trying a suit or executing a decree or order – Civil courts are competent to issue injunctions in terms of Or. 39, rr. 1 and 2 and s.151 CPC – Similar orders can, therefore, be passed by the Wakf Tribunal also in suits that are legally triable by it – If the Wakf Tribunal, upon consideration of relevant facts and circumstances, comes to the conclusion that a case for grant of interim injunction has been made out, it shall be free to issue any such injunction – Code of Civil Procedure, 1908 – Or. 39, rr. 1 and 2 and s.151 – Injunctions. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 492 of 2003. From the Judgment & Order dated 24.01.2002 of the High Court of Judicature at Madras in CRP No. 1430 of 2001. K.V. Viswanathan, B. Ragunath (for Vijay Kumar) for the Appellants. K. Ramamoorthy, Hari Shankar K., Vikas Singh Jangra for the Respondents.

SYED MOHIDEEN & ANR. v. RAMANATHAPURA PERIA MOGALLAM JAMATH & ORS. (Civil Appeal No. 492 of 2003) JULY 21, 2010 [MARKANDEY KATJU AND T.S. THAKUR, JJ.] 2010 (8) SCR 777 The following order of the Court was delivered ORDER The application for substitution is allowed. Heard learned counsel for the parties. This appeal has been … Continue reading

Code of Civil Procedure, 1908 : Order 39, Rules 1, 2 and 3-Trial court granting interim ex parte injunction order without recording reasons and requiring applicant to perform duties as laid down in proviso to Rule 3-Consequence thereof-Held, injunction order deemed to contain such requirements by implication and the appellant should perform the duties. Order 39, Rule 3A-Section 104, Order 43, Rule 1-Trial court failing to pass final orders within 30 days-Held, the injunction order is deemed to be the final order on the date of expiry of 30 days and the aggrieved party is entitled to right of appeal. Section 104, Order 43, Rule 1-High Court entertaining revision petition when there were alternate remedies-Whether correct-Held, High Court should have directed the parties to avail the alternate remedies and should not have entertained the revision petition-Constitution of India-Article 227. Appellant-plaintiff filed a suit before the trial court for a decree of permanent injunction restraining the respondents from dispossessing him of the suit property. The appellant also moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 for the grant of a temporary injunction, which was granted by the trial court. The respondents filed a revision petition under article 227 of the constitution before the High Court alleging that the respondents were in possession and enjoyment of the property. The High Court set aside the injunction order observing that the order could come into operation beyond thirty days under Order 39 Rule 3A of the Code. The High Court directed the trial court to take up the interlocutory application for injunction and pass orders on merits. In appeal to this Court, the plaintiff contended that the respondents had alternate remedies either by approaching the trial court for vacating the injunction order or filing an appeal against the order. The respondents contended that an injunction order without complying with the requisites envisaged in proviso to Rule 3 of Order 39 is void. Citation: 2000 AIR 3032,2000( 3 )Suppl.SCR 303,2000( 7 )SCC 695,2000( 6 )SCALE398 ,2000(10 )JT 599 Disposing of the appeal, the Court HELD: 1. An order passed under Rule 3 of Order 39 of the Code of Civil Procedure, 1908, is deemed to contain the requirements laid down in proviso (a) and (b) of the Rule by implication even if they are not stated expressly. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which has to be performed as required by the proviso, then the party must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. [310-C-D] 2.1. Rule 3A under Order 39 casts a protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second is the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in writing. [311-B] 2.2. The Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second, is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. It is only in very exceptional cases that the Court could by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer. [311-D-E] 2.3. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule. [311-F-H; 312-A-C] 3. With regard to the question whether the High Court should have entertained the petition under Article 227 of the Constitution when the party had two other alternative remedies, though no hurdle can be put against the exercise of the constitutional powers of the High Court it is a well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. [312-D] 4. As directed by the High Court the trial court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law. Till the orders of the trial court, status-quo as it prevailed immediately preceding the institution of the suit would be maintained by the parties. [312-F] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5102 of 2000.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6     PETITIONER: A. VENKATASUBBIAH NAIDU Vs. RESPONDENT: S. CHELLAPPAN AND ORS. DATE OF JUDGMENT: 19/09/2000 BENCH: K.T. Thomas & R.P. Sethi JUDGMENT: THOMAS, J. Leave granted. L…I…T…….T…….T…….T…….T…….T…….T..J When a plaintiff rushed to the civil court for an exparte interim order of injunction against some of … Continue reading

Section 26 of Specific Relief Act, 1963: Section 26 of the Special Relief Act 1963 (hereinafter referred to as ‘Act’) provides for rectification of instruments, where through fraud or a mutual mistake of the parties, an instrument in writing does not express the real intention, then the parties may apply for rectification. However, clause 4 thereof, provides that such a relief cannot be granted by the court, unless it is specifically claimed. -Undue influence – Section 16 of Contract Act, 1872: Section 16 of the Contract Act provides that a contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other. “The doctrine of ‘undue influence’ under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of S.16 lays down the principle in general terms. By sub-section (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his will may also remain in a position to suppress the requisite evidence in support of the plea of undue influence.”- when fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence.- it is crystal clear that even though the document may be admissible, still its contents have to be proved and in the instant case, as the appellant did not examine either the attesting witnesses of the document, nor proved its contents, no fault can be found with the judgment impugned before us. Section 26 of the Act, provides for rectification of a document if the parties feel that they have committed any mistake. Also, it was only, the father of the parties who could have sought rectification of the deed. Mere rectification by parties herein does not take the case within the ambit of Section 26 of the Act. Taking note of the statutory provisions of Section 16 of the Contract Act and the parameters laid down by this Court for application of doctrine on undue influence, the High Court has reached a correct conclusion. In view of the above, we reached the following inescapable conclusions: i) Neither of the party has examined the attesting witness to document Ex.A-3. As such a witness could have explained the conduct of the parties and deposed as to who had prepared the document Ex.A-3. ii) It is evident from the language of the deed (Ex.A-3) that it has been prepared either by a lawyer or a deed writer. iii) The said document (Ex.A-3) does not bear either the signature, or the address of the scribe. The appellant has also not examined the scribe, nor has he disclosed who such person was. This would have revealed the correct position with respect to whether the respondent no.1 had signed blank papers, or whether she had come to him for the execution of the document with the attesting witnesses and appellant. Additionally, the scribe could have explained who had bought the non judicial stamp paper for the document Ex. A-3. iv) The consideration for executing document (Ex.A-3) seems to be the redemption of the property mortgaged jointly by both the parties, to one Advocate Krishnaswamy, with whom the deeds of title Ex.A1 and Ex.A2 had been kept as security. The said mortgagee has not been examined by the appellant to show as to whether the respondent No.1 22Page 23 was also a party to the mortgage and who had placed the title deed of her property with him. v) In his examination-in-chief, the appellant had made a false statement that he was not made aware of the settlement deed Ex.A-1 till 26th June of 1982, as it was given to him by his mother on that date before her death. Such a statement stands completely falsified, as the document Ex.A-1 reveals, that he had been put in possession by his father, with the permission of respondent No.1 , as the property in Door No.23 had been given to her and it was made clear that the respondent No .1 had absolute right of enjoyment to the said property. vi) Document Ex. B3 dated 29th July 1983 is subsequent to document Ex.A-6, wherein settlor Mr. Sandy had written to respondent No.1 that he had given Door No.23 to her. Thus, the settlor never intended otherwise. vii) The document Ex.A3 shows that the mistake was discovered in the last week of May 1982. So it was agreed to rectify the error, therefore the parties undertook the same as a rectification under Section 26 of the Act. In the written statement filed by the appellant, in the suit filed by the respondent No.1 , Paragraph no. 7 & 9 refers to the mistake and also, the rectification. Thus, the document Ex.A-3 cannot be read as an “agreement to exchange.” It can be read only as a 23Page 24 rectification deed, which could have been done only by the settlor and not by the contesting parties. viii) Considering the respective area of the properties bearing nos.22 and 23, the contract can definitely be held “unconscionable”. In view of the above, we are of the considered opinion that appeals are devoid of any merit. The same are accordingly dismissed. No costs. CIVIL APPEAL NOs. 2184-2185 OF 2004 These appeals are squarely covered by the aforesaid decision in the main matters i.e. C.A No. 2178-2179 of 2004. The same are, accordingly, dismissed.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 2178-2179 OF 2004 Joseph John Peter Sandy …Appellant Versus Veronica Thomas Rajkumar & Anr. …Respondents With CIVIL APPEAL NOs. 2184-2185 OF 2004 J U D G M E N T Dr. B. S. CHAUHAN, J. 1. These appeals have been preferred … Continue reading

foreign divorce, – The short lived marriage which got solemnized on 24.6.1999 was dissolved on 17.4.2000 by a decree passed by Superior Court of California, County San Diego, Family Division, in Case No.D.454571 ABC, filed by the husband/appellant herein. 1.1. The wife filed the suit before the 1st Additional Principal Family Court, Chennai, for a declaration that the decree of divorce passed by the Superior Court of California is abinitio void, inoperative and not binding on the plaintiff, which came to be decreed. What is crucial is that the wife has challenged jurisdiction of the Foreign Courts. Only, if a party applies for leave to participate in the proceedings without challenging the jurisdiction one can infer that the party has submitted to the jurisdiction of the Court. But, in this case, the wife on receipt of summons has challenged the jurisdiction of the Foreign Court.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.02.2012 CORAM: THE HONOURABLE MRS. JUSTICE R.BANUMATHI and THE HONOURABLE MRS. JUSTICE S.VIMALA C.M.A.No.929 of 2002 against O.S.No.38 of 2000 Bhashyam Ramesh @ Rajagopalan rep. by Power Agent Mr.V.S.Vhasyam … Appellant/Defendant .. Vs .. R.Saroja @ K.K.Saroja 35/2, T.P.Koil Street, Triplicane, Chennai-5. … Respondent/Plaintiff Civil Miscellaneous … Continue reading

whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1674 OF 2012 (Arising out of SLP (Crl.) No. 10547/2010) Geeta Mehrotra & Anr. ..Appellants Versus State of U.P. & Anr. . Respondents J U D G M E N T GYAN SUDHA MISRA, J. 1. This appeal by special leave in … Continue reading

Wakf Act- Section 9 of the 1921 Act, to the extent it is relevant, reads as under : “SECTION 9. APPLICATION TO COURT FOR DIRECTING THE LANDLORD TO SELL LAND – (1)(a)(i) Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted or proceeding under section 41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord may, within one month of the date of the publication of Madras City Tenants Protection Amendment Act, 1979 in the Tamil Nadu Government Gazette or of the date with effect from which this Act is extended to the municipal town, township or village in which the land is situate or within one month after the service on him of summons, apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of the extent of and specified in the application. In view of Section 3 of the 1994 Amendment Act, the application made by the legal representatives of the original defendant being Interlocutory Application No. 16520 of 1973 under Section 9 of the 1921 Act which is said to be pending before the trial court does not survive and by operation of law that application has abated. It is strange that when Second Appeal was heard by the High Court, none of the parties brought to the notice of the learned Judge the provisions of the 1994 Amendment Act. In the Review Petition, the provisions of the 1994 Amendment Act were expressly referred to but the learned single Judge referred to Section 2 only and did not advert to Section 3 at all. The omission to consider Section 3 of the 1994 Amendment Act has rendered the impugned judgment and impugned order legally unsustainable.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2232-2233 OF 2002 TAMIL NADU WAKF BOARD                      Appellant (s) VERSUS SYED ABDUL QUADER & ORS.                   Respondent(s) J  U  D  G  M  E  N … Continue reading

Section 4 of the Act reads as under: “4. Fixation of Fair Rent. – (1) The Controller shall on application made by the tenant or the landlord of a building and after holding such enquiry as he thinks fit, fix the fair rent for such building in accordance with the principles set out in the following sub-sections: (2) The fair rent for any residential building shall be nine per cent gross return per annum on the total cost of such building. 3) The fair rent for any non-residential building shall be twelve per cent gross return per annum on the total cost of such building. 4) The total cost referred to in sub-section (2) and sub- Section (3) shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of anyone or more of the amenities specified in schedule 1 as on the date of application for fixation of fair rent. Provided that while calculating the market value of the site in which the building is constructed, the Controller shall take into account only that portion of the site on which the building is constructed and of a portion upto fifty per cent, thereof of the vacant land, if any, appurtenant to such building the excess portion of the vacant land, being treated as amenity; Provided further that the cost of provision of amenities specified in Schedule 1 shall not exceed- i) in the case of any residential building, fifteen per cent; and ii) in the case of any non-residential building, twenty- five per cent, of the cost of site in which the building is constructed and the cost of construction of the building as determined under this section.” From the principles set out in sub-Sections (2) to (4) of Section 4 it is apparent that market value of the site on which the building is constructed is an important factor to be taken into consideration for fixing the fair rent of the building. 15. Reverting to the facts of this case, we find that the appellants are tenant of three premises of which the respondents are the landlords. Out of the three premises, the first premises is a non-residential building constructed on land bearing D.No.23, T.T.K. Road, Chennai relating to which fair rent has already been determined by the Rent Controller in RCOP NO. 1046 of 1994. In the said case, the Rent Controller (Small Causes Court), Chennai by judgment dated 28.6.1996 determined the market fair rent on accepting the market value of the land at Rs.25 lakhs per ground. Against the said judgment, appeals have been preferred by both the appellant-tenants and the respondent-landlords but no order of stay has been passed by the appellate authority; matter is still pending. With regard to rest two rented premises, the building are situated on the adjacent land bearing D.No. 22, TTK Road, Chennai which are the subject matter of dispute. The mere fact that the appeal filed by appellants and respondents remain pending for disposal for more than 8 years and during the pendency the respondent-landlord filed two petitions under Section 4 of the Act before the Rent Controller, cannot be made a ground to deprive the appellants-tenants of their legitimate right to rely on a market value of adjacent land (D.No. 23, TTK Road, Chennai) already determined by the Rent Controller. Even if the appeals are dismissed by the appellate authority, the market value of the adjacent land as determined will remain Rs. 25 lakhs per ground. In the cases in hand, it was not open to the appellate authority to ignore the market value of the adjacent land already determined on the ground of pendency of an appeal. The High Court failed to appreciate the aforesaid fact though it was a fit case for the High Court to interfere under Article 227 of the Constitution of India. 16. In the result, the appeals are allowed in part; the impugned judgments of the Appellate Authority dated 14.10.2006 as affirmed by the High Court, so far as it relates to “market value of the land” is concerned, are set aside; Appeals, RCOP No. 1393, 1394, 1404 and 1405 of 2004 are remitted to the appellate authority (learned VIIIth Judge, Court of ‘Small Causes Court’, Chennai) for determination of limited issue relating to the market value of the land on which the building premises is situated (D.No. 22, TTK Road, Chennai-18) taking into consideration the evidence on record including Exh.A-4, Exh.A-9 and the market value of the adjacent land as was determined by the Rent Controller in RCOP No. 1046 of 1994, etc., preferably within six months. 17. So far as the findings of the appellate authority with respect to ‘classification of building’, ‘depreciation’, ‘plinth area’, ‘construction charges’ and of basic amenities of the petition building as affirmed by the High Court are not interfered with by this Court and they are upheld. There shall be no order as to costs.


Code of Civil Procedure, 1908 – O.13 r.10 – Genuineness of a deed challenged before civil court – Initiation of criminal proceedings also – In criminal proceeding deed sent for examination of signature and thumb, impression of the person challenging it, to forensic expert – Plaintiffs application calling for forensic report regarding handwriting allowed – But application calling for report regarding thumb impression dismissed – Held: Dismissal of the later application not justified – If bringing on record a document is essential for proving a case, ordinarily the same should not be refused – The procedural mechanics necessary to arrive at just decision must be encouraged. Appellant and respondents were co-sharers. Allegedly they entered into a deed of partition. Appellant filed a suit questioning the genuineness of the deed. He also lodged an FIR in that regard. In the criminal proceedings, the partition deed was sent for examination of signature and thumb impression of the appellant. In the pending suit, appellant filed an application for calling for the report of forensic report from the court of Judicial Magistrate as regards purported signature and the same was allowed. Thereafter he filed another application for calling for the forensic report regarding the thumb impression. Trial court rejected the application on the ground that the application did not furnish requisite particulars and Order 13 Rule 10 CPC did not empower civil court to direct production of document from the custody of police. An application under Article 227 of the Constitution of India was dismissed by High Court. Hence the present appeal. =Allowing the appeal, the court HELD: 1.1. If 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. The court in the said process, however, would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed. [Para 12] [668-D, E] 1.2. There 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 where a civil proceeding as also a criminal proceeding is pending, the latter shall get primacy. [Para 13] [668-F] 1.4. In 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 Evidence Act. Having regard to the provisions contained in Order XIII, Rule 8 CPC, the civil court would furthermore be entitled to substitute the original document by a certified copy. Therefore, the original document could have been called for. [Para 14] [669-G] Union of India and Anr. v. The State and Anr. 1961 XLII ITR 753; Kailash v. Nanhku and Ors. (2005) 4 SCC 480 and Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr. (2006) 1 SCC 75, relied on. Anil Behari Ghosh v. Smt. Latika Bala Dessi and Ors. AIR 1955 SC 566 and Shanti Kumar Panda v. Shakuntala Devi (2004) 1 SCC 438, referred to. 2.1. In view of the fact that appellants in their application disclosed that a First Information Report was lodged on 1.11.2003 against the defendants. The same was registered as Crime No.699/03; that 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, at the request of the Investigating Officer and that plaintiffs have come to learn that a report of the expert was also filed therein in regard to the thumb impression of the appellants, trial Judge, committed a manifest error in holding that requisite particulars have not been furnished. [Paras 9 and 10] [667-F-G; 668-A-B] 2.2. 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. [Para 11] [668-C] Case Law Reference: AIR 1955 SC 566 Referred to. Para 13 (2004) 1 SCC 438 Referred to. Para 13 1961 XLII ITR 753 Relied on. Para 14 (2005) 4 SCC 480 Relied on. Para 14 (2006) 1 SCC 75 Relied on. Para 14 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2243 of 2009. From the Judgment & Order dated 5.1.2007 of the High Court of Judicature at Madras in C.R.P.P.D No. 559 of 2005. Vijay Kumar, C. Jayaraj and Malini Poduval for the Appellants. V. Prabhakar, Ramjee Prasad and Revathy Raghavan for the Respondents.

REPORTABLE 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. … Respondents JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. `Procedural Mechanics’ involving interpretation of Order XIII Rule 10 of … Continue reading

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