P MEHARUNNISSA BEGUM Vs. P NOORUNNISSA BEGUM

JUDGEMENT

(1.) The suit was filed by the respondents-plaintiffs for partition. During the trial the plaintiffs marked Ex.A.1. It appears Ex.A.1 a copy of the Court decree refers to a document dated 24.11.1959 in Tamil language which speaks of settlement between the plaintiffs and their relations. Intending to confront the plaintiffs with document dated.24.11.1959 the petitioners- defendants filed I.A.No.204 of 2001 for direction to the plaintiffs to produce the said document. The application was opposed by the plaintiffs inter alia denying all the contentions in the application and also contending that the alleged document in Tamil language is not executed by plaintiffs' father and that it is a fabricated document. It was also contended that no such document is in the custody of their father. The learned trial Judge having regard to the language of Order XI, Rule 14 of Code of Civil Procedure, 1908 (CPC) dismissed the application on two grounds. First, in the written statement filed by the ninth defendant on behalf of other defendants no averment as to existence or otherwise of the document was made. Secondly, when opposite party disputes the custody of the document, Order XI, Rule 14 of CPC would not apply. The learned trial Judge passingly observed that if the defendants are in possession of Xerox copy of the alleged document, it is always open to them to take necessary steps for leading secondary evidence in accordance with Sections 65 and 66 of the Indian Evidence Act, 1872 ('the Act' for brevity). Accordingly, the application was dismissed. Aggrieved by the same, the present Civil Revision Petition is filed.

(2.) I have heard the learned counsel for the petitioners Sri B.V.Bakshi and the learned counsel for the respondents Sri Moinuddin.

(3.) Sri B.V. Bakshi submits that as and when the plaintiff denies the custody of document the lower Court is entitled to dismiss the application. According to him, the trial Court is bound to conduct enquiry and arrive at the truth. The averment made by the plaintiffs in this case is not relevant for deciding the question under Order XI Rule 14 of CPC. He also submits that the provisions of Sections 65 and 66 of the Act will come into play only when certain requirements are complied with. In the present case, the learned counsel submits that Ex.A.1 which is marked by the plaintiffs' witness refers to the document in Tamil language dated.24.11.1959 and unless the contents of the document are before the Court the truth will not come out. Sri Moinuddin, learned Counsel for the respondents submits that when the plaintiffs deny the custody of the document alleged to have been in their possession the lower Court was justified in dismissing the application which was filed under Order XI Rule 14 of CPC. He also placed reliance on the decision in Indian Foils Ltd. v. 5th Industrial Tribunal, AIR 1972 Cal. 308.