S SARAVANAN Vs. R SELVAKUMAR

JUDGEMENT

(1.) THE plaintiffs in O.S.No.8016 of 2009 on the file of the Learned XV Assistant Judge, City Civil Court, Chennai, are the revision petitioners herein.

(2.) THE plaintiffs filed the above suit for permanent injunction. THE case of the plaintiffs is that the suit property was possessed and enjoyed by one Elumalai Naicker, who got the same under a deed of partition and he was in absolute possession and enjoyment of the property. THE said Elumalai Naicker, died on 05.04.1955, leaving behind his wife Kamakshiammal, son Balaraman and daughter Saraswathi, viz,. the third plaintiff herein as his legal heirs to succeed to the suit property. THE other two legal heirs viz., the widow and the son viz., Balaraman, also died leaving no legal heirs. THErefore, the third plaintiff become the absolute owner of the suit property and she settled the property in favour of her son, viz., the first plaintiff herein under the settlement deed dated 03.06.2006. THE second plaintiff is the wife of the first plaintiff and when the plaintiffs 1 and 2 put up construction, that was objected by the defendant and therefore, the plaintiffs filed the suit for injunction. During trial, the plaintiffs filed an interlocutory application in I.A.No.5667 of 2010 under Order 7, Rule 14 of C.P.C. to receive three affidavits sworn to by various persons as documents on their side for the purpose of marking the same as evidence. That application was dismissed and as against the same, this revision petition is filed.

(3.) ADMITTEDLY, the documents which are sought to be filed are affidavits sworn to by the persons, who are not parties to the suit and under Order 7, Rule 14 ( iii), a document which is sought to be produced in Court by the plaintiff and which has not been produced along with the plaint or not mentioned in the list annexed to the plaint cannot be received in evidence, without the leave of the Court. Therefore, the Court has got power to permit the plaintiffs to file additional documents at a later stage, eventhough the same was not mentioned in the plaint or not filed along with the plaint. This position has been reiterated in the judgment reported in (2006) 4 M.L.J. 1061(supra). Though a document can be permitted to be received at a later stage, we will have to see whether the affidavits of living persons can be received in evidence during trial. Under Order 19, Rules 1 and 2 of C.P.C. the Court may at any time for sufficient reason order that particular facts may be proved by affidavits on such condition as the Court thinks reasonable. As per sub rule (30 of Order 19 of C.P.C., the Court may at the instance of either party, order the attendance for cross-examination of the deponent, when evidence was given by affidavit. Therefore, by a combined reading of Order 19, Rules 1 and 2, it is made clear that an affidavit can be allowed to be received in evidence only on condition that the deponent must be made available for cross-examination and no party has got right to file the affidavit of a living person as of right, unless the Court permits the same subject to the condition stated under Order 19, Rules 1 and 2 of C.P.C. This has been made clear in the judgment reported in A.I.R. (1949) Madras 689 wherein it has been held as follows:-