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

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. ‘Procedural 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

Single Judge of the High Court of Judicature at Madras in CRP No.559 of

2005.

3. Parties  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.   

4. Appellant 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 :

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“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.”

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5. An application under Article 227 of the Constitution of India filed

thereagainst  has  been  dismissed  by  the  High  Court  by  reason  of  the

impugned judgment.

6. Mr.  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 have invoked.   

(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.   

7. Mr.  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

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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 with.

(iii) Appellant  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.  

8. Order  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

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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 suit.”

9. Appellants 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.

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10. In 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.   

11. Furthermore, 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.

12. 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.  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.  

13. 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

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where a Civil proceeding as also a Criminal proceeding is pending, the latter

shall get primacy.

In Anil Behari Ghosh v. Smt. Latika Bala Dessi & Ors. [AIR 1955 SC

566], it is stated :

“The learned 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 :

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“(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.”

14. 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

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

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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 justice.”

In Uday Shankar Triyar v. Ram Kalewar Prasad Singh & Anr. [(2006)

1 SCC 75], it was observed :

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“17.  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  mandates. Procedural  defects  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 are :

i) where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.

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.”

15. In 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.

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16. The  impugned  judgment,  therefore,  cannot  be  sustained.   It  is  set

aside accordingly.  The appeal is allowed. No costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Dr. Mukundakam Sharma]

New Delhi; April 8, 2009

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