R. Dharman vs Murugammal

R. Mala, C.J.—Civil Revision Petition is filed against the fair and decretal order dated 21.11.2013 in I.A. No. 14511 of 2013 in O.S. No. 6749 of 2012 on the file of the XV Assistant Judge, City Civil Court, Chennai.

The revision petitioner herein as a plaintiff filed a suit for recovery of possession and also damages for use and occupation. The first respondent/first defendant filed a written statement and raised a plea that he is only a lessee for the vacant site and she alone made a construction in the suit property. So the plaintiff has filed an application in I.A. No. 14511 of 2013 under Order VII Rule 14(3) of C.P.C. for reception of the document stating that the construction was made by the plaintiff and to prove the same, the diary used to maintain the accounts is necessary. The trial Court, after hearing both sides, dismissed the application, against which, the present revision petition is preferred by the plaintiff.

Learned counsel for the revision petitioner submitted that even though the diary is of the year 1988, the plaintiff made construction in the year 1998 and in each and every date in the diary, he mentioned as to how many masons were working and paid salary, so that document is necessary to prove that the construction was made by him. At the time of filing suit, he also filed the documents for purchasing cement and other building materials for construction and that factum was not considered by the trial Court. Therefore, he prayed for allowing the revision petition.

Even though the respondents were served with notice, no one represented on behalf of them. Hence, the matter was posted today under the caption ''for orders''. Even today, there is no representation on behalf of the respondents.

Considering the submission made by the learned counsel for the revision petitioner and on perusal of the typed set of papers, it reveals that the revision petitioner herein as a plaintiff filed a suit for recovery of possession and damages for use and occupation. In the plaint, it was stated that in the year 1997, the plaintiff made a development in the suit property and he made construction and obtained electricity service connection. The first defendant is his mother-in-law and the defendants 2 and 3 are his brother-in-laws and they were permitted to reside in the suit property and now they are not vacated the premises, hence, the plaintiff forced to file the suit for recovery of possession and also damages for use and occupation.

The first defendant/first respondent herein has filed a written statement stating that the superstructure is belonging to one Shanmugavel and he entered into a sale agreement on 03.01.1994 with the first defendant. The first defendant has five daughters and two sons. The plaintiff married the eldest daughter of the first defendant. The first defendant is doing fruit vending business and the superstructure was built by the first defendant and her other son-in-laws helped her for construction, except the plaintiff and his wife. Since the plaintiff is claiming that the construction was made by him, to prove the same, the diary is necessary.

It is true, the diary is of the year 1988 and the accounts are made in the year 1998. In my view, if the diary can be received subject to proof and relevancy, no prejudice would be caused to the defendants. Further, the admissibility of the document can be decided at the time of trial. Therefore, the impugned order passed by the trial Court is liable to be set aside and it is hereby set aside.

In fine, the Civil Revision Petition is allowed after setting aside the fair and decreetal order dated 21.11.2013 in I.A. No. 14511 of 2013 in O.S. No. 6749 of 2012 on the file of the XV Assistant Judge, City Civil Court, Chennai. The trial Court is directed to mark the document subject to proof and relevancy and it can be decided the admissibility of the document at the time of trial. No costs. Consequently, connected Miscellaneous Petition is closed.