1 THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.08.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Tr CMP (MD)No.180 of 2011 and MP(MD)No.1 of 2011 S.Subbiah Doss .. Petitioner Vs. 1.A.Subbiah 2.Kalyani .. Respondents Transfer Civil Miscellaneous Petition filed under section 24 of CPC to withdraw and transfer I.A.No.589 of 2011 in Original Suit No.205 of 2008 from the file of the Principal District Munsif Court, Tirunelveli to the file of Principal District Munsif Court, Tuticorin. For Petitioner : Mr.P.Pethu Rajesh For R – 1 : Mr.M.Vallinayagam For R – 2 : Mr.R.Anand ORDER This Transfer Civil Miscellaneous Petition has been filed praying to withdraw and transfer I.A.No.589 of 2011 in Original Suit No.205 of 2008 from the file of the Principal District Munsif Court, Tirunelveli to the file of Principal District Munsif Court, Tuticorin. 2. It is stated in the petition that the petitioner as plaintiff has instituted Original Suit No.1114 of 2004 against the first respondent herein on the file of the First Additional District Munsif court, Tirunelveli praying to pass a money decree and the same has been decreed as prayed for and in pursuance of the decree passed therein, E.P.No.2 of 2007 has been filed on the file of the District Munsif Court, Cheranmahadevi and subsequently the same has been transferred to the file of Principal District Munsif Court, Tirunelveli. The first respondent herein as plaintiff has instituted Original Suit No.205 of 2008, wherein the petitioner has been shown as sole defendant. In Original Suit No.205 of 2008 it is prayed to declare that the Judgment and decree passed in Original Suit No.1114 of 2004 are null and void. In Original Suit No.205 of 2008 an application in I.A.No.886 of 2009 has been filed praying to send for the documents mentioned therein from Pathamadai Police Station and the same has been allowed and accordingly a summon has been issued to the Inspector of Police, Pathamadai Police Station https://hcservices.ecourts.gov.in/hcservices/ 2 with a specific direction that he should make his appearance with relevant documents on 26.11.2009 and the Inspector of Police, Pathamadai Police Station has received summons on 23.11.2009. On the basis of direction given by him, the Sub Inspector of Police, Pathamadai Police Station has made his appearance before the Court and submitted a letter stating that the documents mentioned in I.A.No.886 of 2009 is not available. The first respondent has created the document mentioned in I.A.No.886 of 2009 and marked the same as Ex.A4 in Original Suit No.205 of 2008 and Original Suit No.205 of 2008 has been decreed as prayed for. In fact on the side of the petitioner a valid objection has been raised in marking Ex.A4. But in spite of the objection raised on the side of the petitioner, the Principal District Munsif Court, Tirunelveli has marked the same. Since Ex.A4 is nothing but a concocted document, the petitioner has filed the petition in question in I.A.No.589 of 2011 under section 340 of Code of Criminal Procedure, 1973. Since the Principal District Munsif, Tirunelveli has failed to consider the objection raised on the side of the petitioner, and since the second respondent has purposely returned the application filed under section 340 of the Code of Criminal Procedure, 1973 the petitioner is having apprehension in his mind that he would not get fair justice at the hands of the Principal District Munsif, Tirunelveli. Under the said circumstances the present petition has been filed for getting the relief sought for therein. 3. The only point that comes up for consideration in the present petition is as to whether I.A.No.589 of 2011 in Original Suit No.205 of 2008 is liable to be withdrawn and transferred from the file of the Principal District Munsif Court, Tirunelveli to the file of Principal District Munsif Court, Tuticorin on the basis of the reasons given in the petition. 4. The learned counsel appearing for the petitioner has repeatedly contended that the petitioner as plaintiff has instituted Original Suit No.1114 of 2004 against the first respondent herein, wherein it is prayed to pass a decree of money and the same has been decreed as prayed for and subsequently the first respondent herein as plaintiff has instituted Original Suit No.205 of 2008 against the petitioner so as to declare that the Judgment and decree passed in Original Suit No.1114 of 2004 are null and void and in Original Suit No.205 of 2008 an application in I.A.No.886 of 2009 has been filed with a specific prayer of directing the Inspector of Police, Pathamadai Police Station to make his appearance with the documents mentioned therein on 26.11.2009 and he received the concerned summons on 23.11.2009. But as per his direction, the Sub Inspector of Police, Pathamadai Police Station has appeared before the Court and returned the summon and also submitted a letter wherein it has been stated that the document sought to be produced as per order passed in I.A.No.886 of 2009 is not available in the police station. However, the first respondent has managed to concoct the concerned document and marked the same as Ex.A4 in spite of valid objection raised on the side of the petitioner and the Principal District Munsif, Tirunelveli has wilfully failed to consider the objection raised on the side of the petitioner and thereafter on the basis of Ex.A4 https://hcservices.ecourts.gov.in/hcservices/ 3 the Principal District Munsif, Tirunelveli has decreed Original Suit No.205 of 2008 as prayed for and since Ex.A4 is nothing but a concoction the petitioner has filed I.A.No.589 of 2011 in Original Suit No.205 of 2008 on the file of the Principal District Munsif Court, Tirunelveli under section 340 of the Code of Criminal Procedure, 1973 and since the Principal District Munsif, Tirunelveli as well as suit clerk have lent their support in marking Ex.A4 even though valid objection has been raised, the petitioner is having genuine apprehension in his mind. Under the said circumstances the present petition has been filed for the relief sought for therein. 5. The learned counsel appearing for the first respondent has not made any objection. But the learned counsel appearing for the second respondent (suit clerk) has contended that in Original Suit No.205 of 2008 the concerned document has been marked as Ex.A4 and at the time of marking Ex.A4 no objection has been raised on the side of the petitioner/defendant therein. Under the said circumstances, all the allegations made against the Principal District Munsif, Tirunelveli as well as second respondent are totally false and therefore, the present petition deserves to be dismissed. 6. It is an admitted fact that the petitioner as plaintiff has instituted Original Suit No.1114 of 2004 against the first respondent herein, wherein it is prayed to pass a money decree and the same has been decreed as prayed for and in order to declare that the Judgment and decree passed in Original Suit No.1114 of 2004 as null and void the first respondent herein as plaintiff has instituted Original Suit No.205 of 2008 wherein the disputed document has been marked on 08.06.2010 as Ex.A4 through the first respondent who has been examined as PW1. In fact this Court has perused the evidence given by PW1. But in the deposition of PW1 no indication is found with regard to objection alleged to have been raised on the side of the petitioner. However the Court has to meticulously analyse the other allegations made in the petition. 7. As expounded earlier, I.A.No.886 of 2009 in Original Suit No.205 of 2008 has been filed praying to direct the Inspector of Police, Pathamadai Police Station to produce the document mentioned therein. The concerned summon has been received by him on 23.11.2009 and he has been directed to make his appearance on 26.11.2009. But he directed the Sub Inspector of Police, Pathamadai Police Station to make his appearance and accordingly he made his appearance on 26.11.2009 and submitted a letter stating that the document mentioned in I.A.No.886 of 2009 is not available in Pathamadai Police Station. 8. The learned counsel appearing for the petitioner has solely relied upon the letter alleged to have been given by the Sub Inspector of Police, Pathamadai Police Station on 26.11.2009 and the same has been annexed with. In fact this Court has perused the letter alleged to have been given by the Sub Inspector of Police, wherein it has been clearly stated that the document mentioned in I.A.No.886 of 2009 is not available in Pathamadai Police Station. https://hcservices.ecourts.gov.in/hcservices/ 4 Therefore, it is quite clear that the document mentioned in I.A.No.886 of 2009 in Original Suit No.205 of 2008 has not been produced either by the Inspector of Police or by Sub Inspector of Police, Pathamadai Police Station. 9. It has already been stated that the document in dispute has been marked as Ex.A4 through PW1 (first respondent) on 08.06.2010. But it is seen from the records that Ex.A4 has been produced by the plaintiff therein on 10.11.2009. Since the document in dispute (Ex.A4) has been mentioned in I.A.No.886 of 2009 in Original Suit No.205 of 2008 and the Inspector of Police, Pathamadai Police Station has been directed to produce the same and the said petition has been allowed on 09.09.2009 and thereby directed the Inspector of Police, Pathamadai Police Station to make his appearance with the document on 26.11.2009 and since the Sub Inspector of Police, Pathamadai Police Station has submitted a letter on 26.11.2009 stating that no document is available, it is highly impossible that Ex.A4 has been received from Pathamadai Police Station. Therefore, it goes without saying that Ex.A4 has been produced only by the plaintiff (first respondent herein) on 10.11.2009. Since Ex.A4 has not been filed along with the plaint, a separate petition is very much essential. But no such petition has been filed. Therefore, it is needless to say that Ex.A4 has been put into service by the plaintiff in Original Suit No.205 of 2008 (first respondent herein) by way of adopting some back-door methods known to him. 10. Since some allegations have been made against the Principal District Munsif, Tirunelveli and suit clerk (second respondent), this Court has directed the Principal District Munsif, Tirunelveli to submit his remarks as well as explanations as to when the document in question (Ex.A4) has been filed into Court and also as to when the same has been marked. 11. In pursuance of the order passed by this Court, the Principal District Munsif, Tirunelveli has submitted his remarks as follows: “It is humbly submitted to report that during the pendency of Original Suit No.205 of 2005 on the file of the Principal District Munsif Court, Tirunelveli, the plaintiff has filed the petition to send for the police complaint given by him against the defendant and relevant documents from the Pathamadai Police Station. The said Interlocutory Petition has been duly numbered as I.A.No.886 of 2009. The defendant has also made an endorsement as no counter to allow the send for application. Then only this Court was allowed the send for application on 09.09.2009 and the case was posted for await records from the Pathamadai Police Station and on 08.06.2010 PW1 was entered into a witness box and the counsel of plaintiff asked the concerned Bench Clerk to take the documents which was already received by this court from Pathamadai Police Station and get in case bundle. With regarding https://hcservices.ecourts.gov.in/hcservices/ 5 I.A.No.886 of 2009 then only the concerned clerk has taken the documents in the case bundle and the counsel for plaintiff to show the document to PW1 and it was marked as Ex.A4 and another document was marked as Ex.C1 at the time the defendant as well as his counsel also present but they have not raised any objection for marking the document. The document appended with the Court summon which was already received by the Inspector of Police, Pathamadai Police Station on 23.11.2009 the summon dated 26.11.2009. The defendant counsel has not raised any objection to mark the same then only the Court has permitted to mark the document, after that till the date of Judgment the defendant as well as his counsel have not raised any objection or doubt to the said Ex.A4 document. After delivering the Judgment it was not favour on the defendant then only the defendant has raised so many allegations against the Court stating that at the time of marking the document itself the defendant has made an objection and it was not recorded, so for the above said allegation is not correct due to the Judgment against him the defendant make up his mind against me and it has continued to till date. The allegations made by the defendant against me itself totally baseless. The defendant counsel has not raised any objection at the time of marking Ex.A4 document in open Court. Some of the Advocates were also present in the open Court on the date. So the defendant has purposely made in baseless allegation against me. I further submitted that in the proceedings of I.A.No.589 of 2011 sufficient opportunity were given to both parties. The petitioner appear in person and the petitioner side one witness was examined as PW1 in chief. Then PW1 was cross examined by other side after that the petitioner wants to re-examine her, it was also permitted by the Court but he was misleading the witness regarding with the question on cross examination of other sides. The attitude of the petitioner is vehemently opposed by the other side counsel and they represent that without any ambiguity the Court can not permitted to further re-examine of witness. But the petitioner has not stopped his attitude and he was shouted in the open Court. Then only the Court has not permitted to continue the further re-examination. But the petitioner has filed the transfer petition before the Honourable High Court with false and frivolous allegation against me with mala fide intention of the allegation mentioned about me are totally baseless. These are all my humble submission.” 12. In fact the entire remarks submitted by the Principal District Munsif, Tirunelveli have been perused by this court and ultimately found that no suitable remarks have been given with https://hcservices.ecourts.gov.in/hcservices/ 6 regard to the questions posed by this Court. Further the Principal District Munsif, Tirunelveli has given only an evasive reply to the main questions put to him. 13. As pointed out earlier, the document in dispute (Ex.A4) has not been produced either by the Inspector of Police or by Sub Inspector of Police, Pathamadai Police Station and the sub Inspector of Police, Pathamadai Police Station has given a letter on 26.11.2009 stating that the document mentioned in I.A.No.886 of 2009 is not available in Pathamadai Police Station. Therefore, it is pellucid that in producing Ex.A4 some mischief has been done. Since in producing Ex.A4 some mischief has been done and since the Principal District Musif, Tirunelveli has not given proper remarks as to the questions posed to him by this Court, this Court is of the view that it is not feasible to allow the Principal District Munsif, Tirunelveli to dispose of I.A.No.589 of 2011 in Original Suit No.205 of 2008. Under the said circumstances the present petition is liable to be allowed. 14. In fine, this petition is allowed without cost. Connected Miscellaneous Petition is closed and I.A.No.589 of 2011 in Original Suit No.205 of 2008 is ordered to be withdrawn and transferred from the file of the Principal District Munsif Court, Tirunelveli to the file of Principal District Munsif Court, Nanguneri, Tirunelveli District. The Principal District Munsif Court, Nanguneri is directed to dispose of I.A.No.589 of 2011 in Original Suit No.205 of 2008 without giving adherence to the observations made in this order. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To 1.The Principal District Munsif, Tirunelveli 2.The Principal District Munsif, Nanguneri, Tirunelveli District +1cc to Mr.P.Pethurajesh, Advocate Sr.No.29139 mj ssk/30.08.2011 /4c-6p/- order in Tr CMP (MD)No.180 of 2011 24.08.2011 https://hcservices.ecourts.gov.in/hcservices/