M.Kannan v. R. Arul Raj

J U D G M E N T The above Second Appeal has been preferred by the plaintiffs who have unsuccessfully contested a suit for bare injunction before the Courts below.

¶2The matter is posted for admission before this Court and the respondents who have entered caveat are represented by their counsel.

¶3The only substantial question of law that arises for consideration in the above Second Appeal is Whether the Courts below have erred in considering the documents filed on the side of the defendants without the same being marked as Exhibits after the examination of witnesses and dismissing the suit on the basis of these documents?

¶4Since this is the only Substantial Question that requires the consideration of this Court, the Second Appeal itself was taken up for hearing. The facts are being touched upon briefly and the parties are referred to in the same status as before the Trial Court.

¶5The plaintiffs have filed a suit in O.S.No.3979 of 2015 on the file of the XVII Assistant City Civil Court, Chennai for the relief of injunction. It is their case that the suit property was possessed by their father, R.S.Muthiah and that he had been assessed to the property tax at the hands of the Corporation. The said R.S.Muthiah was in possession of the property till 27.11.2009 and the plaintiffs as his legal representatives have inherited the suit property and have been in control and management of the suit property.

¶6While so, on 06.07.2015, the defendants had attempted to trespass into the suit schedule property forcibly. The plaintiff had lodged a police complaint before the local Police station, namely, R.K.Nagar Police Station. However, the complaint was not received. Therefore, the plaintiffs have come forward with the suit in question stating that the super structure had been put up as early as in the year 1997 – 1998 and the property tax and the water sewerage tax were assessed in the name of the plaintiffs' father.

¶7The defendants had filed a written statement contending that the identity of the property was in question. The defendants would contend that the plaintiffs have not elaborated as to how their father had come into possession of the property. It is their case that the property is in the occupation of one wing of a renowned political party and known as the Anna Podhu Nala Mandram. They are a part of the All India Anna Dravida Munetra Kazhagam. The office of this unit was functioning in the property in question.

¶8The defendants would submit that the plaintiffs' father had himself acknowledged this fact as he had participated in the opening function of this office. The said R.S.Muthiah was only in possession of the property as "Protector" of the Mandram and not as a owner of the property. Therefore, the present suit is only an attempt to create a non-existent right on the property. They therefore sought for the dismissal of the suit.

¶9The learned XVII Assistant Judge, City Civil Court, Chennai had framed the following issues: "1.thjpfspd; jfg;gdhupd mDgtj;jpy; tHf;fpilr;brhj;J ,Ue;jjh> 2/thjpfspd;

mDgtj;jpy; tHf;fpilr;brhj;J cs;sjh> 3/tHf;fpilr;brhj;ij

thjpfs; mikjpahf mDgtpj;J tUtjpy; gpujpthjpfs; ,ila{W bra;jhu;fsh> 4/thjpfs;

nfhupa[s;s

epue;ju cWj;Jf;fl;lisg;gupfhuk;

thjpfSf;F fpilf;fj;jf;fjh> 5/,ju gupfhu';fs; vd;d>

¶10In paragraph No.5, the learned XVII Assistant Judge, City Civil Court, Chennai has stated as follows: "thjpfs;

jug;gpy;

3k;

thjp jpU/vk;/ehfuh$d; vd;gtu; th/rh/1 Mf tprhupf;fg;gl;L th/rh/M/1 Kjy; 8 tiuapYk; Fwpaplg;gl;lJ/

gpujpthjpfs;

jug;gpy; rhl;rpfs;

vtUk;

tprhupf;fg;gltpy;iy/ gpujpthjpfs;

jug;gpy;

rhd;whtz';fSk; Fwpaplg;gltpy;iy/ thjpfs; jug;g[ thJiu nfl;fg;gl;lJ/ gpujpthjpfs; jug;gpy; vtUk; Kd;dpiyahfp

thJiuia vLj;Jiuf;ftpy;iy/

¶11However in the body of the Judgement, the learned XVII Assistant Judge, City Civil Court, Chennai has observed as follows: "ix)1k;

gpujpthjpahy;

,t;tHf;fpd; ,ilkD vz;/9956/15y; VG Mtz';fs; jhf;fy; bra;ag;gl;Ls;sJ/ mjhtJ 1k; gpujpthjpahy;

jhf;fy;

bra;ag;gl;Ls;s vjpUiuapy; nkw;go VG Mtz';fs; jhf;fy; bra;ag;gl;Ls;sd/ mjpy; KjyhtJ Mtzkhf jhf;fy; bra;ag;gl;Ls;s jPu;khdg;g[j;jfj;jpd; efypy; mz;zh bghJey kd;wk;. 1tJ bjU. nejh$p efu;. jz;ilahu;ngl;il. brd;id 81 vd;w Kftupapy; ,a';Fk; mz;zh jpuhtpl S.A.No.o140oofo2024 Kd;ndw;w fHfk; vd;w fl;rpapy; ,a';Fk; bghJ ey kd;wk; 19?3y; Jtf;fg;gl;ljhft[k;. mjd; gjpt[ vz; ???? vd;Wk; Fwpg;gplg;gl;Ls;sJ/

x)nkw;go kd;wk; fjt[ vz; 44 V apy; itj;J ,a';fpajhft[k;. 13/05/19?3y; njjp Kjy; nkw;go Kftupapy; itj;J nkw;go kd;wk; ,a';fp te;jjhft[k;. bjhlf;fj;jpy; jpU/v?;/ghy;rhkp vd;gtupd; jiyikapy; kd;wk; ,a';fpte;jjhft[k;. nkw;go kd;wj;jpy; vk;/$p/Mu; ,ut[ gs;spf;F Mrpupau;fs; nju;e;bjlf;fg;gl;ljhft[k;. kd;w fhg;ghsuhf 19?4y; thjpfspd; jfg;gdhu; uhira;ah vd;gtu; ,a';fpte;Js;shu; vd;gjhft[k;. mjpy; gy;ntW njjpfspy; kd;w cWg;gpdu;fshy; jPu;khd';fs; ,aw;wg;gl;ljhft[k; me;j jPu;khdg;g[j;jfj;jpy; vGjg;gl;Ls;sJ/ mJnghy. nkw;go mz;zh bghJ ey kd;wk; g[ul;rp jiytp b$ayypjh S.A.No.o140oofo2024 nguit (,izg;g[) y; nkw;go cs;sjhft[k;. jz;ilahu;ngl;il. 1tJ nejh$p efu;. fjt[ vz; 44y; ,z';fpajhft[k; mjpy; jiytuhf njtu; fnzrd; vd;gtUk;. brayhsuhf ?ju; vd;gtUk;. bghUshsuhf gpujpthjpfspd; jfg;gdhu; uhirah vd;gtUk; ,a';fpajhft[k; fhz;gpj;J PU jPu;khzg;g[j;jfj;jpd; efy; 2tJ Mtzkhf jhf;fy; bra;ag;gl;Ls;sJ/ gpujpthjpfspd; jfg;gdhu; bghUshsuhf ,Ue;J kd;w brytpw;F gzk; brYj;jpaijf; fhl;lf;Toa 21/05/19?3k; njjpapl;l gpy; Pd;W 3tJ Mtzkhft[k;. nkw;go Kftupapy; mz;zh bghJ ey kd;wk; bgaupy; bgau;g;gyif mikf;fg;gl;L bfhof;fk;gKk; ?d;wg;gl;L fhyp ,lkhf jw;nghJ cs;sJ vd;gijf;fhl;lf;Toa g[ifg;gl';fs; 4tJ Mtzkhft[k;. fjt[ vz; 44V g[jpa vz; 91 tpyhrj;jpy; cs;s kd;wk; mike;j jhth brhj;ij ,t;tHf;fpd; thjpfs; Mf;fpukpg;g[ S.A.No.o140oofo2024 bra;jjhfr;brhy;yp M/,/M/jp/K/f tl;l fHfr;brayhsu; 0?/0?/2015k; njjpad;W bfhUf;Fg;ngl;il vr;6 fhty; epiyaj;jpy; bfhLj;Js;s g[fhupd; efy; 5tJ Mtzkhft[k;. mg;g[fhupd; kD Vw;g[ rhd;wpjH; 6tJ Mtzkhft[k;. jhth brhj;Jf;Fupa g[yg;glk; ?tJ Mtzkhft[k; jhf;fy; bra;ag;gl;Ls;sJ/ nkw;brhd;d ? Mtz';fspypUe;Jk; jhth brhj;J mz;zh bghJ ey kd;wk; vd;w bgaupy; ,a';Fk; PU r';fj;jhy; mDgtpf;fg;gl;L te;Js;sJ vd;gij bjupe;J bfhs;sKofpwJ/ ///////////

xii) oth/rh/1d; rhl;rpaj;jpypUe;J mtu; K?ykhf FwpaPL bra;ag;gl;Ls;s th/rh/M/1 Kjy; 8 tiuapyhd Mtz';fspypUe;J. 1Mk; gpujpthjp K?ykhf mtu; jhf;fy; bra;Js;s vjpUiu kw;Wk; ,/k/vz;/15421?2015Yk; jhf;fy; bra;ag;gl;Ls;s Mtz';fspypUe;Jk; ,uz;lhk; gpujpthjpahy; ,/k/vz;fs; 11345 kw;Wk; 11346-2015 Mfpatw;wpy; jhf;fy; bra;ag;gl;Ls;s 8 vz;zpf;fiapyhd

Mtz';fspypUe;Jk; tHf;fpilr;brhj;J thjpfspd; jfg;gdhUf;nfh. mtUf;Fgpd;g[

thjpfSf;nfh

ve;j fhyfl;lj;jpYk;

ghj;jpag;gl;ljhf ,Ue;jpUf;ftpy;iy

vd;gijj;

bjupe;J bfhs;sKofpwJ/

¶12Therefore, the suit has been dismissed on the basis of the documents which have not been even marked and without the defendants entering the witness box or submitting their arguments.

¶13The aggrieved plaintiffs have filed A.S.No.44 of 2022 on the file of the XVI Additional City Civil Court, Chennai. The defendants have taken out an application for receiving documents in I.A.No.8 of 2023. Both the First Appeal as well as the interlocutory application were heard together and the learned Judge has proceeded to receive the documents and mark them as exhibits without affording a chance to the appellants / plaintiffs to cross examine the witness before marking the evidence.

¶14The Lower Appellate Court has ratified the procedurally incorrect Judgement of the Trial Court by receiving and marking the documents, without following the procedure of marking the same through witness. The Judgement and Decree of the Courts below are per se erroneous and therefore the substantial question of law is answered in favour of the appellants.

¶15Therefore, the matter is remitted back to the Trial Court, namely, XVII Assistant City Civil Court, Chennai, to enable the defendants to file the documents and mark the same since the documents have been marked without examining the witnesses. The defendants shall enter the box and once again mark the documents through witnesses and the plaintiff shall be permitted to cross examine the witnesses. It is made clear that the matter is remitted only for the chief examination and cross examination of the defendant's witnesses to mark the documents which have been received in evidence by the XVI Additional City Civil Judge, Chennai in A.S.No.44 of 2022. The learned Trial Judge shall thereafter hear the parties and pass Judgement and Decree. The said exercise shall be concluded within a period of four months from the date of receipt of a copy of this order. Consequently, the order in I.A.No.8 of 2023 in A.S.No.44 of 2022 is set aside.

¶16With the above observation, the Second Appeal is allowed. Consequently, the connected Civil Miscellaneous Petition is closed. No costs.

28.02.2024

Index : Yes/No Internet : Yes/No kan To

1.The XVI Additional Judge, City Civil Court, Chennai.

2.The XVII Assistant Judge, City Civil Court, Chennai. P.T. ASHA, J,

kan S.A.No.140 of 2024

28.02.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28.02.2024 CORAM THE HONOURABLE Ms. JUSTICE P.T. ASHA & C.M.P.No. 4635 of 2024 1.M.Kannan 2.M.Parthasarathy 3.M.Nagarajan 4.M.Kesavakumar 5.S.Patrick Rosario 6.P.Vimal Jerome ...Appellants Vs. 1.R.Arul Raj 2.R.Solomon Raj ...Respondents (Cause title accepted vide order of the Court dated 30.01.2024 made in C.M.P.No.1728 of 2024 in S.A.Sr.No.5768 of 2024). Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed by the First Appellate Court in A.S.No.44 of 2022 dated 20.07.2023 on the file of the XVI Additional City Civil Court, Chennai confirming the Judgement and Decree dated 21.03.2019 passed by the XVII Assistant City Civil Court, Chennai in O.S.No.3979 of 2015. For Appellants : Mr. T.M.Pappiah For Respondents : Mr. S.Ranjithkumar