ADVERSE POSSESSION

In the High Court of Judicature at Madras

Dated: 15/02/2005

Coram

The Honourable Mr. Justice S.R.SINGHARAVELU    

Second Appeal  No. 1065 of 1994

Neelavathi                             ..Appellant

-Vs-

1. Shanmugam  
2. Arulmigu Ramapiran Koil
   at Senthamangalam rep.
   by its Trustee Inbasekaran                   ..Respondents


        Second Appeal filed under Section 100 of Civil Procedure Code  against
the  judgment  and decree dated 18.02.1994 in A.S.No.26 of 1993 on the file of
Sub Court, Kancheepuram, reversing the judgment and decree dated 25.09.1992 in
O.S.No.657  of  1986  on  the  file  of  Principal  District   Munsif   Court,
Kancheepuram.

!For Appellant :  Mr.D.Durairaj

^For Respondents :  Mr.R.Rajesh for
                Mr.S.Balasubramanian


:JUDGMENT  

        This  Second Appeal is directed against the decree and judgment of the
Sub Court, Kancheepuram, dated 18.02.1994 in A.S.No.26 of 1993, which reversed
the decree and judgment passed by the District Munsif Court, Kancheepuram,  on
25.09.1992 in O.S.657 of 1986.

        2.   While  admitting  the  Second  Appeal,  the following substantial
question of law was framed:
"Whether the learned Subordinate Judge erred in law in construing the plea  of
adverse  possession  as inconsistent with plea of title under Ex.A1 failing to
note that the plaintiff had merely set out alternative source of  title  which
is not prohibited by law ?

        3.  This  is  a suit for declaration and injunction.  The appellant is
the plaintiff.  The subject matter of suit is 0.32 cents in  survey  No.94/3-B
of  Papankuzhi  Village  of  Kancheepuram Taluk, patta number of which is 239.
The plaintiff relied upon a settlement  deed  dated  25.0  7.1966,  marked  as
Ex.A-1,  whereby  the property was gifted to plaintiff by her father Nagappan.
In the said document, Nagappan had mentioned two factors; one  is  that,  that
property  belonged to him by his purchase and the other is that he had earlier
executed a Gift deed in favour of his wife on 09.03.1951 and that Alamelu, the
wife subsequently died.  Unfortunately, no particulars of the sale  in  favour
of Nagappan were mentioned thereunder nor was found in the course of evidence.
Apart  from  the  gift  deed,  the  other  documents  that were filed are kist
receipts through Exs.A-2 to A-5 and yet another sale deed  dated  2  6.11.1982
through  Ex.A-8  in  favour  of  one Inbasekaran, which refers to the property
lying on the west of suit property.    There  were  three  witnesses  examined
including  the  plaintiff  on her side and one witness examined on the side of
the defendants.

        4.  The 1st defendant claimed cultivating tenancy right under the 2 nd
defendant temple, in whose written statement, it  was  denied  that  the  suit
property never belonged to Nagappan nor did he have any competency or capacity
to execute  a  gift  in  favour  of  plaintiff.  It was further contended that
neither the plaintiff nor  her  alleged  predecessor  was  in  possession  and
enjoyment of  the  same.    On  the contrary, the suit property was pleaded as
belonging to 2nd defendant  temple  inasmuch  as  one  Kanniappa  Naicker  had
purchased  it in the capacity of the trustee of the said temple as early as on
27.09.1934 under Ex.B-1.

        5.  A careful perusal of that document through Ex.B-1 would show  that
what Kanniappan  purchased  thereunder was 34 cents in Survey No.94/3 .  Since
it was purchased by Kanniappan not in  his  individual  capacity  but  in  the
capacity of the trustee of the 2nd defendant temple, the title vested with the
temple as  early  as  in 1934.  The 2nd defendant temple had also produced the
copy of chitta through Exs.B-12  and  B-13  and  the  copy  of  patta  through
Ex.B-14.   Leaving Ex.B-2 patta as it had corrections in the survey number, we
may have to rely upon Exs.B-1 2 to B-14, the chitta and  patta  for  the  suit
survey number.   It has been argued by the counsel for the appellant that they
were dated 12.0 9.1992 and 14.09.1992, whereas decree was passed in the  trial
court on  25.09.1992.    It  is  in that way documents pertained to the period
subsequent to the suit.  But later developments and events subsequent to  suit
may also have to be taken into consideration.  While plaintiff has no document
of patta nor chitta, the 2nd defendant was able to file them under Exs.B-12 to
B-14.  This will go to show their possession.

        6.   Since  Ex.A-1 is of the year 1966 and no document was produced to
show that Nagappan, the plaintiff's father gifted it to his wife on 09.03.1951
and since no document of purchase in favour of  Nagappan  in  regard  to  this
property  was  produced and that the same was not mentioned in Ex.A-1 and also
since Ex.B-1 is 32 years older than Ex.A-1 document, it was correctly found by
the learned Sub Judge that the appellant / plaintiff has not established  hetr
title.

        7.   Again,  when  plaintiff  had relied upon a particular document of
title, namely, Ex.A-1 gift deed, in order to claim right  and  title  to  suit
property,  she  cannot  claim  it by adverse possession, because when once she
claims title upon a particular document, then whatever right plaintiff  claims
would  be  flowing  if  at  all under that document, in which case there is no
element of adverse nature of possession  in  order  to  make  out  a  case  of
prescription by  title.    Thus,  the  substantial question of law is answered
against the appellant/plaintiff and I find no  reason  to  allow  this  second
appeal.

        8.   The  Second Appeal is dismissed and decree and judgment passed by
the first appellate court is confirmed.  No costs.

Index:  Yes.
Internet:  Yes.

gl

To

1) The Subordinate Judge,
Kancheepuram.

2) The Principal District Munsif,
Kancheepuram.

Copy to:
The Record Keeper,
V.R.Section,
High Court,Madras.






Petitions under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus calling for the records relating to the Detention Orders passed by the 2nd respondent in Cr.M.P.Nos.06/09 and 05/09 dated 30.01.2009 and Cr.M.P.No.08/2009 dated 08.02.2009 quash the same and direct the respondents to produce the body of the Detenus Anandh, Chandru and Sankar @ Kannamma respectively (now detained at Central Prison,Trichy) before this Court and set them at liberty.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED:20/07/2009

CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms.JUSTICE R.MALA

H.C.P.(MD)Nos.182 to 184 of 2009

S.Kanchanadevi ... Petitioner in
   all petitions

vs.

1.The Secretary to Government,
  State of Tamil Nadu,
  Home,  Prohibition & Excise
     Department,
  Fort St. George,
  Chennai - 600 009.

2.The District Collector & District
     Magistrate,
  Trichy District. ... Respondents
   in all petitions

Prayer

Petitions under Article 226 of the Constitution of India praying for
issuance of a Writ of Habeas Corpus calling for the records relating to the
Detention Orders passed by the 2nd respondent in Cr.M.P.Nos.06/09 and 05/09
dated 30.01.2009 and Cr.M.P.No.08/2009 dated 08.02.2009 quash the same and
direct the respondents to produce the body of the Detenus Anandh, Chandru and
Sankar @ Kannamma respectively (now detained at Central Prison,Trichy) before
this Court and set them at liberty.

!For Petitioner      ... Mr.C.M.Arumugam
^For Respondents     ... Mr.P.N.Pandithurai, A.P.P.

:ORDER

R.MALA,J.

In these Habeas Corpus Petitions, the Petitioner as sister of the
Detenus, Anandh, Chandru and Sankar @ Kannamma, challenges the orders passed by
the 2nd Respondent, whereby the Detenus were detained branding them as a
"Goonda" as contemplated under Section 2(f) of the Tamil Prevention of Dangerous
Activities of Book-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral
Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (in
short "Tamil Nadu Act 14/1982).

2.The Detenus had earlier come to adverse notice in two cases,
namely crime No.243/20089 under Sections 387 and 506(ii) IPC on the file of
Thuvakudi Police Station registered on 04.12.2008 and  crime No.790/2008 under
Sections 294(b), 323 and 324 IPC on the file of Tiruverumbur Police Station
registered on 05.12.2008.  The ground case in crime No.835/2008 under Section
302 @ 302 r/w 114 IPC on the file of Tiruverumber P.S. was registered on the
complaint given by one Easwari W/O. Deceased Jayakumar, alleging that 27.12.2008
night at about19.45 hours, when deceased Jayakumar was in his house, the Detenus
called him and made quarrel and Chandru stabbed Jayakumar with a knife on his
head and Anandh assaulted on his head back with an Aruval.  Due to the injuries,
Jayakumar died in hospital.  On being satisfied that the Detenus have acted in a
manner prejudicial to the maintenance of public order committing crimes of
threatening the public on the point of deadly weapons and branding them as a
"Goonda" as contemplated under Section 2(f) of the Tamil Prevention of Dangerous
Activities of Book-leggers, Drug Offenders, Forest Offenders, Goondas, Immoral
Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act, 1982 (in
short "Tamil Nadu Act 14/1982).

3. The learned counsel for the petitioner would contend that the Detenus
have involved in two adverse case and one ground case.  The first adverse case
is in crime No.243/20089 under Sections 387 and 506(ii) IPC on the file of
Thuvakudi Police Station and the date of occurrence is alleged to be on on
04.12.2008, and the second adverse case is in crime No.790/2008 under Sections
294(b), 323 and 324 IPC on the file of Tiruverumbur Police Station, the date of
occurrence is allege to be on 05.12.2008.  All the two adverse cases are only
against the individuals and the ground case is Tiruverumbur P.S. Crime
No.835/2008 has been registered under Section 302 @ 302 r/w 114 IPC and the
occurrence alleged to have been taken place on 27.12.2008.  So, there is no
public tranquility  of public order, breach of law likely to cause disturbs of
public order.  To substantiate his contention, he relied upon the decisions
reported in 2008 STPL(LE)40249 SC (Bhupendra Vs. State of Maharashtra and
another) and argued that there is a vast  different and in that case, it was
decided what is the breach of law and order and public order.  He further relied
on the decision reported  2005 M.L.J. (Crl.) 612 (Kausalya Vs. The District
Collector and District Magistrate, Kancheepuram and another) and (2003) 2
Supreme Court Cases 313 (Darpan Kumar Sharma Alias Dharban Kumar Sharma) and
argued that the detaining authority has not applied his mind and passed the
detention orders.  He further argued that the second adverse case and the ground
case are in between the relatives and there was a property dispute between the
deceased Jayakumar and the Detenus and so there is no disturbance in law and
problem, but the detaining authority has not applied his mind. Hence, the
learned counsel for the petitioner prayed to quash the detention order.

    4. Per contra, the learned Additional Public Prosecutor would contend that
the Detenus were involved in two adverse cases and one ground case.  The second
adverse case and ground case are in between the relatives who is adjacent house
owner of the Detenus.  Because of the quarrel made in regard to the property
dispute, the occurrence have taken place.  The ground case has caused
tranquility in the minds of public that has happened in a public road and hence
the detaining authority has considered all the materials and came to the
conclusion and there is no infirmity in the order passed by the detaining
authority and thus he prayed for the dismissal of these habeas corpus petitions.

5. While considering the arguments of both the learned counsel for the
petitioner and the learned Additional Public Prosecutor, the first adverse case
is against the individual and the second adverse case and the ground case are
against the relative to the Detenus is also individual.

6. In the first adverse case that has been alleged that on 04.12.2008
morning at about 09.00 hours, while one Murugan a resident of Therkumalai, an
auto rickshaw driver was in auto stand, the Detenus already known persons got
down from a bus and demanded Rs.500 and subsequently, they threatened him.  The
second adverse case that has been alleged that on 05.12.2008, the Detenus closed
the main entrance of Jayakumar's house and hence Jayakumar preferred a
complaint; hence on 06.12.2008 at 8.30 hours having aruvals and wooden logs in
their hands and assaulted Jayakumar, who is the relative of Detenus.
7. In regard to the ground case, it is stated in paragraph No.3 of the
ground of detention as follows:
"........ ON 27.12.2008 night, at about 19.45 hours, when Jayakumar was in
his house, the accused Anandh and his brother Chandru called him out of his
house and made unnecessary quarrel.  Thirumathi Easwari also followed them to
see their activities.  After the arrival of her husband Jayakumar out of the
house, associate Chandru stabbed Jayakumar with a knife on his head, left rib
repeatedly and Anandh assaulted on his head back with an aruval.  Jayakumar
raised hue and cry.  Easwari also raised alarm.  On hearing the noise,
Palanisami, Kadiravan, Selvendran, Thangamani came to the spot and averted the
assault.  Due to the succumbed injuries, Jayakumar fell on the ground with pool
of blood.  Availing the opportunity, Chandru and Anandh decamped along with
weapons.  Easwari took her husband to the Government Headquarters Hospital with
the assistance of Thangamani for hospitalization.  The duty medical officer, who
was in the hospital examined Jayakumar declared that he is dead.   He demanded
action against them  Hence, a case was registered in Tiruverumbur
P.S.Cr.No.835/2008 U/S.302 IPC."

In that circumstances, the Detaining authority arrived at the satisfaction, the
above said action affects the public, law and order and the Detenus have created
alarm and a feeling of the insecurity in the minds of the people of the area, in
which the occurrence took place.

8. Here, even though the learned Additional Public Prosecutor would
contend that the occurrence taken place in a public road.  On perusal of
Observation Mahazar, which enclosed in Page No.41 of Booklet, would show that
the occurrence has been taken place in Periyar Street.  While perusing the Rough
Sketch, which enclosed in Page No.43 of Booklet, it would show that it is only a
street not a public road as alleged by the learned Additional Public Prosecutor.
While perusing F.I.R, which was enclosed in Page No.40 of booklet, it was stated
that Detenus Anandh and Chandru took the deceased Jayakumar to the left side of
palanichamy's house which was situated opposite to Jayakumar's house and
inflicting injuries on his head and back and at that time, he and her wife had
raised alarm, Palanichamy, Kadhiravan, Selvendran and Thangamani came there and
prevented them and the Detenus ran away from the place of occurrence.  In that
nothing has been mentioned that the occurrence has been taken place in the
public view and public place and on seeing the occurrence public in the locality
were scared and felt insecurity.  So, F.I.R., Observation Mahazar and Rough
Sketch have clearly proved that the occurrence has not taken place in public
place.  In the above said circumstances, there is no material on record to show
that disturbance caused panic to those who were spectators in that place, no one
was there except the deceased and his wife.

9. At this juncture, in the decision reported in 2005 M.L.J. (Crl.) 612
(Kausalya Vs. The District Collector and District Magistrate, Kancheepuram and
another), it was clearly stated what are the activities would amount only to
breach of law and order or likely to cause disturbance of public order would be
decided on the following principles:
1) The maintenance of law and order relates to the crimes committed by
private individuals.  The maintenance of public order relates to the disturbance
to the even tempo of life and public tranquility and its effect upon the life of
the community in a locality;

2) Every assault in a public place resulting in the death of a victim may
cause panic to those who are spectators but that does not mean that the said
incident would cause disturbance or dislocation of the community life of the
locality, in the absence of material that the act is committed in a public place
to cause terror to the people in the locality so that they would be prevented
from following their usual avocations;

3) The impact on "public order" and "law and order" depends upon the
nature of the act, the place where it is committed and the motive force behind
it.  If the act is confined to an individual without affecting the tempo of the
life of the community, it is a matter of law and order only and it may not fall
within the orbit of public order;

4) In order to bring the activity so as to show that it would affect the
maintenance of public order, there must be material to show that there has been
a feeling of insecurity among the general public;
5) The mere words in the ground of detention would not be sufficient to
inject the requisite degree of quality and potentiality to show that the
incident was so grave as to disturb the normal life of the community in the
locality in the absence of such materials.

10. The learned counsel for the petitioner would also rely upon the
decision reported in 2008 STPL(LE)40249 SC (Bhupendra Vs. State of Maharashtra
and another) and argued that the Apex Court has laid down the guidelines how the
activities of detenu to be breach of law to the public order to be decided.  In
that, the Apex Court has held as follows:



"7. The crucial issue is whether the activities of the detenu were
prejudicial to public order.   While the expression 'law and order' is wider in
scope inasmuch as contravention of law always affects order.  `Public order' has
a narrower ambit, and public order could be affected by only such contravention
which affects the community or the public at large.  Public order is the even
tempo of life of the community taking the country as a whole or even a specified
locality. The distinction between the areas of `law and order' and 'public
order' is one of the degree and extent of the reach of the act in question on
society. It is the potentiality of the act to disturb the even tempo of life of
the community which makes it prejudicial to the maintenance of the public order.
If a contravention in its effect is confined only to a few individuals directly
involved as distinct from a wide spectrum of public, it could raise problem of
law and order only. It is the length, magnitude and intensity of the terror wave
unleashed by a particular eruption of disorder that helps to distinguish it as
an act affecting 'public order' from that concerning `law and order'. The
question to ask is: "Does it lead to disturbance of the current life of the
community so as to amount to a disturbance of the public order or does it affect
merely an individual leaving the tranquility of the society undisturbed?" This
question has to be faced in every case on its facts.

8. "Public order" is what the French call 'order publique' and is
something more than ordinary maintenance of law and order. The test to be
adopted in determining whether an act affects law and order or public order,
is:Does it lead to disturbance of the current life of the community so as to
amount to disturbance of the public order or does it affect merely an individual
leaving the tranquility of the society undisturbed? (See Kanu Biswas v. State of
West Bengal (AIR 1972 SC 1656).

9. "Public order" is synonymous with public safety and tranquility: "it is
the absence of disorder involving breaches of local significance in
contradistinction to national upheavals, such as revolution, civil strife, war,
affecting the security of the State". Public order if disturbed, must lead to
public disorder. Every breach of the peace does not lead to public disorder.
When two drunkards quarrel and fight there is disorder but not public disorder.
They can be dealt with under the powers to maintain law and order but cannot be
detained on the ground that they were disturbing public order. Disorder is no
doubt prevented by the maintenance of law and order also but disorder is a broad
spectrum, which includes at one end small disturbances and at the other the most
serious and cataclysmic happenings. (See Dr. Ram Manohar Lohia v. State of Bihar
and Ors. (1966 (1) SCR 709).

10. 'Public Order', 'law and order' and the 'security of the State'
fictionally draw three concentric circles, the largest representing law and
order, the next representing public order and the smallest representing security
of the State. Every infraction of law must necessarily affect order, but an act
affecting law and order may not necessarily also affect the public order.
Likewise, an act may affect public order, but not necessarily the security of
the State. The true test is not the kind, but the potentiality of the act in
question. One act may affect only individuals while the other, though of a
similar kind, may have such an impact that it would disturb the even tempo of
the life of the community. This does not mean that there can be no overlapping,
in the sense that an act cannot fall under two concepts at the same time. An
act, for instance, affecting public order may have an impact that it would
affect both public order and the security of the State. [See Kishori Mohan Bera
v. The State of West Bengal (1972 (3) SCC 845);    Pushkar Mukherjee v. State of
West Bengal (1969 (2) SCR 635); Arun Ghosh v. State of West Bengal (1970 (3) SCR
288); Nagendra Nath Mondal v. State of West Bengal (1972 (1) SCC 498).

11. The distinction between 'law and order' and 'public order' has been
pointed out succinctly in Arun Ghosh's case (supra). According to that decision
the true distinction between the areas of 'law and order' and `public order' is
"one of degree and extent of the reach of the act in question upon society". The
Court pointed out that "the act by itself is not determinant of its own gravity.
In its quality it may not differ but in its potentiality it may be very
different". (See Babul Mitra alias Anil Mitra v. State of West Bengal and Ors.
(1973 (1) SCC 393, Milan Banik v. State of West Bengal (1974 (4) SCC 504).

12. The true distinction between the areas of law and order and public
order lies not merely in the nature or quality of the act, but in the degree and
extent of its reach upon society. Acts similar in nature, but committed in
different contexts and circumstances, might cause different reactions. In one
case it might affect specific individuals only, and therefore touches the
problem of law and order only, while in another it might affect public order.
The act by itself, therefore, is not determinant of its own gravity. In its
quality it may not differ from other similar acts, but in its potentiality, that
is, in its impact on society, it may be very different.


13. The two concepts have well defined contours, it being well established
that stray and unorganized crimes of theft and assault are not matters of public
order since they do not tend to affect the even flow of public life. Infractions
of law are bound in some measure to lead to disorder but every infraction of law
does not necessarily result in public disorder. Law and order represents the
largest scale within which is the next circle representing public order and the
smallest circle represents the security of State. "Law and order" comprehends
disorders of less gravity than those affecting "public order" just as "public
order" comprehends disorders of less gravity than those affecting "security of
State". [See Kuso Sah v. The State of Bihar and Ors. (1974 (1) SCC 185, Harpreet
Kaur v. State of Maharashtra (1992 (2) SCC 177, T.K. Gopal v. State of Karnataka
(2000 (6) SCC 168, State of Maharashtra v. Mohd. Yakub (1980 (2) SCR 1158)] and
Commissioner of Police v. C. Anita (2004(7) SCC 467)."


While considering the above said citation, there is a distinction between the
areas of law and order and public order lies not merely in the nature or quality
of the act, but it is one of degree and extent of the reach of the act question
upon society.   In one case, it may affect the specific individual only and
therefore it reaches problem of law and order only.  While in another, it may
affect public order.  But, here the ground case has not affected the public
order.  In the above said circumstances, while considering the decisions, the
occurrence has not taken place in a public road, it is a street in between two
rows of houses.  In F.I.R. also it was not stated that the occurrence has taken
place in a public road.  Hence, it will not cause panic  and insecurity in the
minds of public.  So, we are of the considered view that there is no cogent
material before detaining authority to come to the conclusion that the act of
the Detenus has created panic in the minds of people of particular locality or
public in general.


11. The learned counsel appearing for the petitioner would also rely upon
the decision reported in (2003) 2 Supreme Court Cases 313 (Darpan Kumar Sharma
Alias Dharban Kumar Sharma) and the relevant portion is extracted hereunder:
"Though in the grounds of detention the detaining authority had stated
that by committing this offence in public the detenu created a sense of alarm,
scare and a feeling of insecurity in the minds of the public of the area and
thereby acted in a manner prejudicial to the maintenance of public order which
affected the even tempo of life of the community, but citation of these words in
the order of detention is more in the nature of a ritual rather than with any
significance to the content of the matter.  Thus, a solitary instance of robbery
as mentioned in the grounds of detention is not relevant for sustaining the
order of  detention for the purpose of preventing the petitioner from acting in
a manner prejudicial to the maintenance of public order.

In the above said case, the detenu has involved in three adverse cases under
Section 379 IPC.  The ground case is that he had committed robbery of Rs.1000/-
in point of knife and disturbing even tempo of life of public since the
occurrence taken place at Tambaram Railway Station.  In that, the Apex Court has
held that the detaining authority had stated that by committing this offence in
public the detenu created a sense of alarm, scare and a feeling of insecurity in
the minds of the public of the area and thereby acted in a manner prejudicial to
the maintenance of public order which affected the even tempo of life of the
community.
12. Even though the detaining authority while passing order in paragraph
No.4 of the grounds of detention order, he has stated that he was satisfied from
the materials placed before him in the ground case  committing grave offence in
a public place and which cause insecurity in the nearby residential area and
traffic area, they have created alarm and a feeling of insecurity in the minds
of the general public.  But while considering the documents F.I.R, Observation
Mahazar and Rough Sketch enclosed in Page Nos.40, 41 and 43 respectively in the
Book let, these would clearly prove that the place of occurrence is only a thar
road not a public road.  There is no evidence to show that the occurrence has
taken place in the public view and public place and on seeing the occurrence,
public in the locality were scared and felt insecurity.  Moreover, there is no
iota of evidence before the detaining authority that by committing the above
described grave crime in the nearby residential area and traffic area, they have
created alarm and a feeling of insecurity in the minds of the general public,
where the occurrence took place and thereby acted in a manner prejudicial to the
maintenance of public order.

13. In the light of the above discussion, we are of the considered view
that there was no cogent material before the detaining authority to come to the
conclusion that the Detenus have created a scene of scare and a feeling of
insecurity in the minds of the community in the locality in which the occurrence
had taken place and thereby acting in the manner prejudicial to the maintenance
of the public order.
14. As per the decision reported in 2008 STPL(LE)40249 SC (Bhupendra Vs.
State of Maharashtra and another), one crime against the individual and two
crimes against the relative, even though in the ground case, the occurrence has
taken place in thar Road as mentioned in the grounds of detention, it is not
create law and order problem  and the same is not sufficient for sustaining the
order of detention for the purpose of preventing the petitioner from acting in a
manner prejudicial to the maintenance of the public order.  This ground is
enough to quash the orders of detention made by the respondents.
15. Accordingly, the Habeas Corpus Petitions are allowed and the impugned
orders of detention in Cr.Mp.Nos.06/09 and 05/09 dated 30.01.2009 and
Cr.M.P.No.08/2009 dated 08.02.2009, are quashed.  The Detenus are directed to be
released forthwith, unless their presence is required, in accordance with law,
in connection with any other case.

arul

To:

1.The Secretary to Government,
  State of Tamil Nadu,
  Home,  Prohibition & Excise
     Department,
  Fort St. George,
  Chennai - 600 009.

2.The District Collector & District
     Magistrate,
  Trichy District.

3.The Additional Public Prosecutor,
  Madurai Bench of Madras High Court,
  Madurai.

Petition under Article 226 of the Constitution of India praying for issuance of a Writ of Habeas Corpus calling for the entire records connected with the detention order of the Respondent No.2 in Cr.M.P.No.22/2009 dated 19.03.2009 and quash the same and direct the respondents to produce the body and person of the petitioner's husband by name Mahamuni, aged about 25 years son of Sannsi, now confined at Trichirappalli Central Prison before this Court and set him at liberty forthwith.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04/08/2009

CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms.JUSTICE R.MALA

H.C.P.(MD)No.204 of 2009

Sangeetha ... Petitioner

vs.

1.State of Tamil Nadu,
  Rep. by its
  Secretary to Government,
  Home,  Prohibition & Excise
     (XVI) Department,
  Fort St. George,
  Chennai - 600 009.

2.The District Collector & District
     Magistrate,
  Trichirappalli District,
  Trichirappalli.

3.The Superintendent of Prison,
  Tiruchirappalli Central Prison,
  Tiruchirappalli.

4.The Secretary,
  Advisory Board,
  32, Rajaji Salai,
  Singaravelar Malihai,
  Chennai - 600 001. ... Respondents

Prayer

Petition under Article 226 of the Constitution of India praying for
issuance of a Writ of Habeas Corpus calling for the entire records connected
with the detention order of the Respondent No.2 in Cr.M.P.No.22/2009 dated
19.03.2009 and quash the same and direct the respondents to produce the body and
person of the petitioner's husband by name Mahamuni, aged about 25 years son of
Sannsi, now confined at Trichirappalli Central Prison before this Court and set
him at liberty forthwith.

!For Petitioner      ... Mr.R.Alagumani
^For Respondents     ... Mr.P.N.Pandithurai, A.P.P.

:ORDER

R.MALA,J.

In this Habeas Corpus Petition, wife of the detenu challenges the
order passed by the 2nd Respondent, whereby the Detenu was detained branding him
as a "Goonda" as contemplated under Section 2(f) of the Tamil Prevention of
Dangerous Activities of Book-leggers, Drug Offenders, Forest Offenders, Goondas,
Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and Video Pirates Act,
1982 (in short "Tamil Nadu Act 14/1982).
2.Based on the recommendations made by the Sponsoring Authority that the
Detenu was involved in three adverse cases, as detailed below,
Sl.NO. Police Station and Crime No. Section of law
1 Musiri P.S.Cr.No.437/2006 U/s.454, 380 IPC
2 Musiri P.S.Cr.No.09/2007 U/s.379 IPC
3 Musiri P.S.Cr.No.92/2009 U/s.394 IPC
The ground case in crime No.92/2009 under Section 394 IPC on the file of Musiri
P.S. was registered on the complaint given by one Neelamegham S/O.Ramasami
Pillai, alleging that on 07.02.2009, at about 22.15 hours, when he proceeded to
his house from his tiffin stall with a cycle along his friend Natesan, while he
was going near Santhi school at Thathengarper one unidentified person
threatened him to stop his cycle, but Neelamegham instructed his friend Natesan
to proceed further and then, the accused by name Mahamuni chased them and kicked
the cycle and Neelamegham fell on the road and the accused pulled his shirt and
slapped on his cheek and uttering the words "kfhKdpA;fw Bgiu Bfl;lh
fPHre;ijghisak; vd;d KrpwpBa myWk; mg;goapUf;f ne;j kfhKdp brhd;dh irf;fpis
epg;ghl;lhk Bghapl;oUf;f" and again slapped on his cheek and later he threatened
Neelamegham demanded money for consuming liquor, but he refused to pay the
amount.  It was further stated in the complaint that again Mahamuni threatened
him by uttering words "vj;jidg; Bgiug; ghh;j;jpUf;Bfd;.  vj;jid thl;o b$apYf;F
BghapUf;Bfd; bjhpa[kh vk; BgU Bf.o. yp!;l;oBy nUf;F" and wilfully put his hand
in his shirt pocket and robbed a sum of Rs.485 and ran away.  On being satisfied
that the Detenu has acted in a manner prejudicial to the maintenance of public
order committing crime of threatening the public on the point of deadly weapon
and branding him as a "Goonda" as contemplated under Section 2(f) of the Tamil
Prevention of Dangerous Activities of Book-leggers, Drug Offenders, Forest
Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum Grabbers and
Video Pirates Act, 1982 (in short "Tamil Nadu Act 14/1982).
3. The learned counsel for the petitioner would advance his arguments and
prayed for quashing the detention order in following three grounds:
(i) The representation dated 28.03.2009 submitted by the petitioner was
not considered by the detaining authority.
(ii) The detaining authority filed to forward the representation dated
28.03.2009 of the petitioner.
(iii) Even though the petitioner sought for a copy of remand extension
order, the same has not been furnished.
4. The learned counsel for the petitioner would contend that the
petitioner was branded as Goonda and the detention order has been passed on
19.03.2009.  He further submit that the petitioner, wife of the detenu sent a
representation on 28.03.2009 and as per paragraph No.6 of the grounds of
detention, the petitioner sent the representation within 12 days from the date
of detention order, but the same has not been considered by the detaining
authority and hence, he prayed for the quashing of detention order.

5. The learned Additional Public Prosecutor would contend that the
representation of the petitioner dated 28.03.2009 has been received on
30.03.2009 and it has been considered and rejected on 02.04.2009 and the same
was served on the respondents on 03.04.2009 and hence the representation of the
petitioner has been properly considered and he prayed for the dismissal of the
habeas corpus petition.

6. While considering the arguments and perusal of the records placed
before us, it has clearly proved that the representation dated 28.03.2009 of the
petitioner has been received by the detaining authority on 30.03.2009 and the
detaining authority has considered the matter on 02.04.2009 and sent the
rejection letter to the petitioner on 03.04.2009.  In the above said
circumstances, we are of the considered opinion that the first ground advanced
by the learned counsel for the petitioner that the representation dated
28.03.2009 submitted by the petitioner was not considered by the detaining
authority is not sufficient to quash the detention order.

7. The learned counsel for the petitioner further contended that in the
representation dated 28.03.2009, in paragraph No.8, it was stated that the
petitioner had made a request to place the matter before the Secretary to
Government, Home, Prohibition & Excise(XVI) Department, Fort St. George, Chennai
- 600 009, but the same has not done.  He further contended that the date of
approval is 30.03.2009 and after the approval, the detaining authority has no
right to consider the representation of the petition and on this ground, the
learned counsel for the petitioner prayed for the quashing of detention order.
To substantiate his case, he relied upon the decision reported in 2006-1-
L.W.(Crl.) 369 (Rajeswari Vs. The Secretary to Government, Prohibition and
Excise Department, Fort St. George, Chennai and another).

8. The learned Additional Public Prosecutor would contend that it is
true, the date of detention order is 19.03.2009 and the date of approval is
30.03.2009, but the same has been received by the detaining authority only on
08.04.2009.  He further urged that the detaining authority has received the
representation of the petitioner on 30.03.2009 and he dealt with the matter on
02.04.2009 and in the above said circumstances, he had no knowledge about the
date of approval and the decision relied upon by the petitioner is not
applicable to the facts of this case and he prayed for the dismissal of habeas
corpus petition.

9. While considering the arguments of both sides counsel and perused the
decision relied upon by the petitioner, it is an admitted fact that the
detention order has been passed on 19.03.2009 and the date of approval is
30.03.2009.  On perusal of records, the approval has been received by the
detaining authority only on 08.04.2009.  But, before he received the approval
communication from the State Government, he received the representation from the
petitioner on 30.03.2009 and he considered the same on 02.04.2009 and sent the
rejection letter on 03.04.2009.  In the above said circumstances, the arguments
advanced by the learned counsel for the petitioner does not merit acceptance.

10. In the decision reported in 2006-1-L.W.(Crl.) 369 (Rajeswari Vs. The
Secretary to Government, Prohibition and Excise Department, Fort St. George,
Chennai and another), it was mentioned that the detention order has been passed
on 07.11.2005 and the Government approved the detention order on 18.11.2005 and
the District Collector has received the representation on 21.11.2005 and it is
but proper on his part to forward the same to the government, since after
approval of the detention order by the Government, he has also no power to pass
an order on the representation.  But, here, as already discussed, the detention
order has been passed on 19.03.2009 and approved on 30.03.2009, the same has
been received by the detaining authority only on 08.04.2009, but before that he
received the representation on 30.03.2009 and considered the same on 02.04.2009
and he sent the rejection order on 03.04.2009.  Therefore, we do not think that
the ratio of the said Division Bench cannot have show readily apply to the facts
of this case.

11. Further more, the representation was only addressed to the detaining
authority.  But, the detaining authority received the representation and
considered the same before he got approval order from the Government.  So, we
are of the considered opinion that the second ground advance by the learned
counsel for the petitioner that the detaining authority filed to forward the
representation dated 28.03.2009 of the petitioner is also not sufficient to
quash the detention order.
12. The learned counsel appearing for the petitioner would contend that in
the ground case i.e. crime No.92/2009 under Section 394 IPC on the file of the
Musiri P.S., alleged to be taken place on 07.02.2009 at 22.15 hours and the
accused was arrested and remanded to judicial custody on 08.02.2009 till
20.02.2009.  He further urged that the remand period was extended upto
06.03.2009 and again extended upto 20.03.2009.  But, the detention order was
passed on 19.03.2009, but the remand extension report has not been furnished.
The learned counsel for the petitioner would also submit that the petitioner, in
paragraph No.5 of her representation, had made a request for furnishing the copy
of remand extension report and she further stated that the remand extension
order dated 20.02.2009 to 20.03.2009, were not found place in the booklet and
she requested the copy of the same and without the said document she was unable
to make her representation and the learned counsel prayed for quashing the
detention order.

13. The learned Additional Public Prosecutor has vehemently opposed the
above said contention stating that the sponsoring authority has furnished the
memo given by the jail authority in page No.72 of booklet in respect of the
detenu's remand extension particulars and the same has also been considered by
the detaining authority and after substantive satisfaction, the detaining
authority has passed the detention order and he prayed for the dismissal of the
habeas corpus petition.

14. While considering the arguments of both sides counsels, the ground
case has been registered in Musiri P.S. Crime No.92 of 2009 under Section 394
IPC and the occurrence has been alleged to be taken place on 07.02.2009 midnight
and the accused/detenu was arrested on that date itself and he was produced
before the Judicial Magistrate on 08.02.2009.  The learned Judicial Magistrate
made an endorsement in the remand extension report that the accused produced,
age verified, ground of arrest explained, accused has no complaint against the
police, remand extended to 20.02.2009.


15. In this case, the detention order passed only on 19.03.2009.  In
between, the remand was extended on 20.02.2009 to 06.03.2009 and again
06.03.2009 to 20.03.2009.  But, except the above said memo, no remand extension
order has been found place in the booklet, which was furnished by the
respondents.  Even though, it is true that the petitioner herein made a request
to furnish the same, it was not furnished to her.
16. At this juncture, the learned counsel appearing for the petitioner has
taking upon us on the decision of Full Bench decision of this Court reported in
2007(5) CTC 657 (Full Bench) (G.Kalaiselvi Vs. The State of Tamil Nadu, rep. by
Secretary to Government of Tamil Nadu, Home, Prohibition and Excise Department,
Fort St. George, Chennai - 600 009 and one another), wherein, it was stated as
follows:
"21. Law is well settled that the Detaining Authority is required to give
copies of the relied upon documents along with grounds of detention and non-
furnishing of relied upon document has the effect of vitiating the order of
detention.  See Pownammal V. State of Tamil Nadu and another, 1999 SCC (Crl.)
231.  Where, however, a document is not relied upon, yet the detenu asks for
copy of such document, which is either referred to or has got some bearing, it
is the duty of the appropriate authority to furnish such co[y or atleast
indicate the reason why such copy is not supplied to the detenu in spite of
specific request by the detenu.  As already indicated, where a document asked
for is on the face of it irrelevant, non-furnishing of such document is
immaterial.  where, however, the document has got some relevance, refusal of
supply such copy, in spite of specific request, without any valid reason, may
have the effect of vitiating the order of detention as the detenu is likely to
be prejudiced, inasmuch as he would not be in a position to make an effect
representation.

22.In the present case, in our opinion, when the detenu specifically asked
for a copy of the remand order dated 30.03.2007, the appropriate authority
should have either furnished copy of such order or furnished sufficient reasons
as to why such order could not be furnished.  On this ground, the order of
detention is liable to be quashed."
While considering the above citation, even though the document is not relied
upon by the detaining authority, yet the petitioner asks for copy of such
document, which is either referred to or has got some bearing, it is the duty of
the appropriate authority to furnish such copy or atleast indicate the reason
why such copy is not supplied to the detenu in spite of specific request made by
her.  Here also, without any reply has been given, the representation has been
rejected.

17. In such circumstances, as per the decision stated earlier, we are of
the considered opinion that non furnishing of remand extension order requested
by the petitioner is a valid ground for quashing the detention order.  The
detaining authority should have furnished the copy of remand extension order
from 20.02.2009 to 20.03.2009 or should have furnished sufficient reason as to
why such copy of order cannot be furnished and on this ground alone, the
detention order is liable to be quashed.


18. Accordingly, the Habeas Corpus Petition is allowed and the impugned
order of detention in Cr.M.P.No.22/2009 dated 19.03.2009, is quashed.  The
Detenu is directed to be released forthwith, unless his presence is required, in
accordance with law, in connection with any other case.

arul
To:
1.The Secretary to Government,
  Home,  Prohibition & Excise
     (XVI) Department,
  Fort St. George,
  Chennai - 600 009.

2.The District Collector & District
     Magistrate,
  Trichirappalli District,
  Trichirappalli.

3.The Superintendent of Prison,
  Tiruchirappalli Central Prison,
  Tiruchirappalli.

4.The Secretary,
  Advisory Board,
  32, Rajaji Salai,
  Singaravelar Malihai,
  Chennai - 600 001.

4.The Additional Public Prosecutor,
  Madurai Bench of Madras High Court,
  Madurai.

etition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to call for the entire records pertaining to the Order of Detention passed by the 1st respondent vide his proceedings in No.37/BDFGISSV/2008 dated 13.10.2008 and quash the same and consequently set the detenu by name Udayar alias Durai, S/o.Mundasamy, Thevar who is confined at Central Prison, Palayamkottai at liberty.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 06/08/2009

CORAM
THE HONOURABLE MRS. JUSTICE R.BANUMATHI
and
THE HONOURABLE Ms. JUSTICE R.MALA

H.C.P.(MD) No.403 of 2009

Mookkammal
W/o.Mundasamy Thevar      ..    Petitioner

vs.

1.The Commissioner of Police,
  Tirunelveli City.

2.The Secretary to the Government,
  Home, Prohibition and
  Excise (XIV) Department,
  Chennai - 9.

3.The Inspector of Police,
  Palayamkottai Police Station,
  Tirunelveli District.      ..   Respondents

Petition filed under Article 226 of the Constitution of India to issue a
Writ of Habeas Corpus to call for the entire records pertaining to the Order of
Detention passed by the 1st respondent vide his proceedings in
No.37/BDFGISSV/2008 dated 13.10.2008 and quash the same and consequently set the
detenu by name Udayar alias Durai, S/o.Mundasamy, Thevar who is confined at
Central Prison, Palayamkottai at liberty.

!For petitioner    ... Mr.R.Anand
^For respondents   ... Mr.P.N.Pandidurai                            
      Addl.Public Prosecutor

:ORDER

(Order of the Court was made by R.BANUMATHI, J)
The petitioner, mother of the detenu - M.Udayar alias Durai challenges the
Detention Order dated 13.10.2008 passed by the detaining authority, Commissioner
of Police, Tirunelveli whereby the detenu was ordered to be detained under the
provisions of the Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers,
Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand
Offenders, Slum-grabbers and Video Pirates Act, 1982 (Tamil Nadu Act 14 of 1982)
branding him as a "Goonda".
2. The detenu had earlier come to adverse notice in a case in
Palayamkottai Police station Crime No.862/2006 under Section 302 r/w 120(b), 34
IPC and 3(2)(v) SC/ST (Prevention of Atrocities Act, 1989 and in Murappanadu
Police Station Crime No.198/2007 under Sections 294(b), 506(ii) IPC and Section
4 of Tamil Nadu Prevention of Harassment against Women Act.
3. The facts leading to passing of the impugned Detention Order are that
the defacto complainant Alwyn repaired the lights of the vehicle of the detenu
and the detenu assured to pay repair charges of Rs.380/- after 2 days and went
away.  On 3.10.2008 at 4.45 p.m., the defacto complainant Alwyn along with one
Manikandan was coming near Petrol Bunk, Uchigopuram, Palayamkottai, Alwyn asked
money from the detenu and the detenu is alleged to have abused Alwyn and
Manikandan in filthy language and also threatened Alwyn by  brandishing Aruval
and snatched Rs.570 from his shirt pocket.
4. On the complaint lodged by Alwyn, the ground case was registered in
Crime No. 1610/2008 under Sections 314, 294(B), 427, 387 and 506(ii) IPC and the
detenu was arrested on 4.10.200 and remanded to judicial custody.
5.  In para 3 of the Detention Order, the detaining authority has stated
that owing to the conduct of the detenu, those who were coming to petrol bunk,
those who were walking on the road and those who were waiting for the bus took
to their heels out of fear and those who were coming in two wheelers sped away
in their vehicles.  Bus drivers stopped the buses and nearby shop-keepers closed
their shops.  The entire place wore a deserted look for a while.  On being
satisfied that the detenu is habitually indulging in different crimes and acting
in a manner prejudicial to the maintenance of public order, the impugned
Detention Order was clamped.
6. The Detention Order is challenged on the ground that the ground case in
Crime No.1610/2008 is a solitary incident and it is not of such a magnitude and
intensity so as to disturb the public order and clamp the detention Order.  It
was further contended that based on such single incident, the detaining
authority was not justified in observing that  the detenu is habitually
committing crimes and also acting in a manner prejudicial to the maintenance of
public order and therefore, the Detention Order is liable to be quashed.
7. Taking us through the averments in the counter affidavit and materials
on record, the learned Additional Public Prosecutor submitted that the detenu
was involved in two adverse cases  including  one murder case and in the ground
case, the detenu threatened Alwyn  in a public place and based on the materials,
the detaining authority satisfied itself that the detenu has committed crimes
and is also acting in a manner prejudicial to the maintenance of public order
and as such, he is a  Goonda as contemplated under Section 2(f) of the Tamil
Nadu Act 14/1982 and such subjective satisfaction cannot be interfered with.
8. Observing that the detenu is habitually committing crimes, in para 5 of
the Detention Order, the detaining authority observed as follows:
"5. Hence I am satisfied that Thiru. M.Udayar alias Durai is habitually
committing crimes and is also acting in manner prejudicial to the maintenance of
public order and as such he is a Goonda as contemplate under Section 2(f) of the
Tamil Nadu Act 14 of 1982.  By committing the above described grave crime in a
public and a busy locality in a business area, he has created an alarm and a
feeling of insecurity in the minds of public in that area and thereby acted in a
manner prejudicial to the maintenance of public order."
9. Further in para 6 of the Detention Order, the detaining authority has
observed that if the detenu comes out on bail he will indulge in such further
activities which will be prejudicial to the maintenance of public order.
10. In the first adverse case in Palayamkottai Police station Crime
No.862/2006 under Section 302 r/w 120(b), 34 IPC and 3(2)(v) SC/ST (Prevention
of Atrocities Act, 1989, the detenu and his associates are alleged to have
committed murder of Manivannan at 13.15 hours on 18.8.2006 when Manivannan was
coming near auto stand along with his friend.  The first adverse case under
Section 302 IPC is an offence against an individual and on the human body.  The
second adverse case in Murappanadu Police Station Crime No.198/2007 was for the
offences under Sections 294(b), 506(ii) IPC and Section 4 of Tamil Nadu
Prevention of Harassment against Women Act on 12.10.2007.  Due to previous
enmity, the detenu is alleged to have threatened Petchiammal's husband
Subramanian and when Petchiammal prevented the detenu, the detenu is alleged to
have abused Petchiammal in filthy langauage and pulled her sari and thereby
alleged to have outraged the modesty of Petchiammal and the detenu was charged
for the offence under Sections 294(B) and 506(ii) IPC.  Here again, the second
adverse case is relating to abusing Petchiammal in filthy language and outraging
her modesty and nothing relating to public order.
11. No doubt in Para 3 of the Detention Order, the detaining authority has
stated that by committing the offence in the public place near Petrol Bunk, the
detenu has committed grave offence in public and the detenu has created a sense
of alarm in the public and those who were  walking on the road and those who
were waiting for the bus took to their heels out of fear and those who were
coming in two wheelers sped away in their vehicles.  Bus drivers stopped the
buses and that nearby shop-keepers closed their shops and thereby, the detenu
had acted in a manner prejudicial to the maintenance of public order.
12. The question is whether such a single incident is a criminal
intimidation and the commission of robbery would affect the public order and can
the detenu be said to have acted in a manner prejudicial to the maintenance of
public order.  Observing that solitary assault on one individual can hardly be
said to disturb public peace or place public order in jeopardy so as to bring
the case within the purview of the Act providing for preventive detention, the
Supreme Court in Darpan Kumar Sharma v. State of Tamil Nadu and others [2003
Supreme Court Cases (Cri) 537] in para No.5 has held as follows:
"5. The basis upon which the petitioner has been detained in the instant
case is that he robbed one Kumar at the point of knife a sum of Rs.1,000/-.  Any
disorderly behaviour of a person in the public or commission of a criminal
offence is bound, to some extent, affect the peace prevailing in the locality
and it may also affect law and order but the same need not affect maintenance of
public order.  Under the definitions in the Act, it is stated that in the case
of "goonda" the acts prejudicial to public order are "when he is engaged, or is
making preparations for engaging, in any of his activities as a goonda which
affect adversely, or are likely to affect adversely, the maintenance of public
order" [Section 2(a)(iii)].  The question whether a man has only committed a
breach of law and order or has acted in a manner likely to casue disturbance of
the public order is a question of degree and the extent of the reach of the act
upon the society; that a solitary assault on one individual can hardly be said
to disturb public peace or place public order in jeopardy so as to bring the
case within the purview of the Act providing for preventive detention."

In T.Devaki V. government of Tamil Nadu and others [1990 Supreme Court
Cases (Cri) 348] in para No.19, the Supreme Court has held as follows:
"19.  No doubt in paragraph 4 of the grounds, the detaining authority has
stated that by committing this grave offence in public, in broad day light, the
detenu created a sense of alarm, scare and a feeling of insecurity in the minds
of the public of the area and thereby acted in a manner prejudicial to the
maintenance of public order which affected even tempo of life of the community.
Repetition of these words in the grounds are not sufficient to inject the
requisite degree of quality and potentiality in the incident in question.  A
solitary assault on one individual can hardly be said to disturb public peace or
place public order in jeopardy so much as to bring the case within the purview
of the Act.  Such a solitary incident can only raise a law and order problem and
no more.  Moreover, there is no material on record to show that the reach and
potentiality of the aforesaid incident was so great as to disturb the normal
life of the community in the locality or it disturbed general peace and
tranquillity.  In the absence of such material it is not possible to hold that
the incident at the seminar was prejudicial to the maintenance of public order.
In Manu Bushan roy Prodhan V. State of west Bengal [(1973) 3 SCC 663: 1973 SCC
(Cri) 469], this Court held that a solitary assault on one individual, which may
will be equated with an ordinary murder which is not an uncommon occurrence, can
hardly be said to disturb public peace and its impact on the society as a whole
cannot be considered to be so extensive, widespread and forceful as to disturb
the normal life of the community, thereby shaking the balanced tempo of the
orderly life of the general public.  The Court held that the detention order
which had been made for preventing the petitioner from acting in a manner
prejudicial to the maintenance of public order, was not sustainable in law.  On
a careful consideration of the matter in all its aspects and having regard to
the circumstances in which the alleged incident took place on July, 29, 1989, we
are of the opinion that the solitary incident as allege din the ground of
detention is not relevant for sustaining the order of detention for the purpose
of preventing the petitioner from acting in a manner prejudicial to the
maintenance of public Order."
13. The ratio of the above decisions squarely apply to the case on hand.
In the present case, there is only one solitary incident whereby the detenu is
alleged to have committed robbery in public place and is alleged to have
threatened Alwyn and there is no material on record to show that the
potentiality of the single incident was to disturb normal life of the community
in the locality or disturb general peace and tranquillity or create a sense of
alarm and in security in area.
14. Though in the grounds of Detention, the detaining authority has stated
that by committing the offence in public, the detenu had created a sense of
alarm, the words in the Order of Detention are not substantiated by the
materials.  In 2003 Supreme Court Cases (Cri) 537 cited above (in paragraph 6),
the Supreme Court has held as follows:
"6.  ... there is no material on record to show that the reach and
potentiality of the single incident of robbery was so great as to disturb the
even tempo or normal life of the community in the locality or disturb general
peace and tranquillity or create a sense of alarm and insecurity in the
locality.  Though in the grounds of detention, the detaining authority had
stated that by committing this offence in public the detenu created  a sense of
alarm, scare and a feeling of insecurity in the minds of the public of the area
and thereby acted in a manner prejudicial to the maintenance of public order
which affected the even tempo of life of the community, but citation of these
words in the order of detention is more in the nature of a ritual rather than
with any significance to the content of the matter."

15. Applying the ratio of Darpan Kumar Sharma's case cited above, we are
of the considered view that the case of solitary incident as mentioned in the
grounds of detention does not form basis for sustaining the Order of Detention
and the impugned Order of Detention is liable to be quashed.  Accordingly, the
impugned order of detention is quashed and Habeas Corpus Petition is allowed.
The detenu is directed to be set at liberty forthwith unless he is required in
connection with any other case.

asvm
To
1.The Commissioner of Police,
  Tirunelveli City.

2.The Secretary to the Government,
  Home, Prohibition and Excise (XIV) Department,
  Chennai - 9.

3.The Inspector of Police,
  Palayamkottai Police Station,
  Tirunelveli District.

4.The Additional Public Prosecutor,
  The Madurai Bench of
   Madras High Court, Madurai.

This Second Appeal arises out of concurrent findings of Courts below decreeing plaintiff's suit and ordering recovery of possession and payment of arrears of paguthy (lease rent). Unsuccessful defendant is the appellant.In the result, the judgment of the Lower Appellate Court in A.S.No.70 of 2005 on the file of the Additional Sub-Court, Mayiladuthurai confirming the judgment and decree dated 22.12.2004 made in O.S.No.236 of 2003 on the file of the Addl.District Munsif Court, Mayiladuthurai is confirmed and the Second Appeal is dismissed. No costs.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date :    10.11.2009

THE HONOURABLE Mrs.JUSTICE R.BANUMATHI


S.A.No.31 of 2007


Thambusamy ... Appellant


Vs.

Mani ... Respondent


Prayer: This Second Appeal is filed under Section  100 of Civil Procedure Code against the judgment and decree dated 17.1.2006 made in A.S.No.70 of 2005 on the file of the Additional Sub-Court, Mayiladuthurai  confirming the judgment and decree dated 22.12.2004 made in O.S.No.236 of 2003 on the file of the Addl.District Munsif Court, Mayiladuthurai.

For Appellant : Mr.S.Sounthar
For Respondent : Mr.N.Sankaravadivel

-----

JUDGMENT

This Second Appeal arises out of concurrent findings of Courts below decreeing plaintiff's suit and ordering recovery of possession and payment of arrears of paguthy (lease rent).  Unsuccessful defendant is the appellant.

2.Suit property relates to 0.02 acres in S.No.22/16 of Kadichampady village.  Case of respondent/plaintiff is that he purchased suit property from one Gnanasambanda Desikar and Gnanaprakasa Desikar by way of the sale deed dated 09.02.1959.  Out of 15 cents purchased by plaintiff, 2 cents was given to appellant/defendant on oral paguthy arrangement on 01.08.1980.  Further case of plaintiff is that from January 2001 defendant failed to pay paguthy and defaulted in paying paguthy for about 2 years.  Plaintiff issued legal notice on 08.01.2003 and caused another notice Ex.A5(04.02.2003) to defendant to hand over vacant possession on 01.03.2003.  Defendant received the said notice and sent reply (Ex.A8-13.02.2003). In his reply defendant denied title of plaintiff in the suit property.  Hence, plaintiff filed suit seeking recovery of possession and also arrears of paguthy (lease rent).

3.Resisting the suit, defendant filed written statement contending that he was working under Kakthan Mudaliar, son of Govindasamy Mudaliar as a coolie and suit property belongs to Govindasamy Mudaliar.  Defendant was permitted to put up thatched shed in the suit property.  Defendant pleaded that he perfected his title to the suit property by adverse possession and defendant has thus become title holder of the suit property.  According to defendant, plaintiff ought to have filed suit for declaration before seeking recovery of possession and plaintiff is not entitled to the relief sought for.

4.On the above pleadings four issues were framed in the trial Court.  On plaintiff's side, plaintiff was examined as PW1 and Exs.A1 to A8 were marked.  Defendant examined himself as DW1 and one witness Govindasamy was examined as DW2.  No document was marked on defendant's side.

5.Upon consideration of oral and documentary evidence, trial Court held that defence plea that the defendant came to be in possession under Govindasamy Mudaliar was not substantiated by any oral or documentary evidence.  Trial Court further held that the defendant has neither proved his possessary right to the suit property nor proved his title.  Laying emphasis upon Ex.A9 reply notice  wherein defendant has admitted that he is a paguthidar, trial Court rejected the defence plea and decreed the suit as prayed for.

6.Being aggrieved by judgment of trial Court, defendant preferred appeal in A.S.No.70 of 2005.  Reiterating the findings of the trial Court, Lower Appellate Court held that in Ex.A9 reply notice defendant has admitted his lease of the vacant site and therefore, defendant cannot deny being a paguthidar.  In so far as contention regarding limitation, lower Appellate Court held that the defendant has not come out with a clear case as to how he came to be in possession of the suit.  Confirming findings of the trial Court, lower Appellate Court dismissed the first appeal.

7.Being aggrieved by concurrent findings of Courts below directing delivery of vacant possession plaintiff has filed this Second Appeal.  At the time of Admission, the following Substantial question of law was framed for consideration:
"Whether the findings of the Lower Courts that there exist landlord-tenant relationship between the parties is vitiated by perversity as there is no legal evidence to support such evidence"

8.The learned counsel for appellant contended that the oral tenancy pleaded by respondent/plaintiff is not supported by any independent evidence.  It was mainly contended that on the basis of Ex.A9, a part of which being torn, Court cannot come to a definite conclusion that the defendant is a  paguthidar.  The learned counsel would further submit that concurrent findings of Courts below that the defendant is a  paguthidar is based on no evidence and therefore warrants interference by the High Court exercising jurisdiction under Sec.100 of C.P.C.

9.The learned counsel for respondent submitted that even though defendant has alleged that he has been paying the house tax, no document was produced by the defendant.  It was further argued that neither Govindasamy Mudhaliar nor his family members or manager were examined to substantiate defense plea.  Learned counsel for respondent/plaintiff further argued that based on evidence of PW1 and conduct of defendant, Courts below recorded concurrent findings that defendant is a  paguthidar and such concurrent findings of fact cannot be interfered with.  

10.Under Ex.A1(09.02.1959), through which plaintiff traces his title to the suit property, plaintiff purchased 15 cents from  Gnanasambanda Desikar and Gnanaprakasa Desikar.  To prove his ownership, plaintiff has also produced Ex.A2-Adangal and Ex.A3-Chitta in his favour issued by the Revenue Authorities.  Out of 15 cents purchased under Ex.A1, 2 cents was given to the defendant under an oral paguthy arrangement (lease of site) on rent which was fixed periodically.  In his evidence plaintiff/PW1 has clearly spoken about oral paguthy arrangement from 01.08.1980 and lease rent payable and that defendant committed default in paying lease rent from 2001 onwards.

11.Per contra, defendant traces his right through one Govindasamy Mudaliar under whom he worked.  According to defendant, family of Govindasamy Mudaliar permitted him to put hut in the suit property, about 30 years prior to the filing of suit and accordingly he is in possession of the property.  As held by Courts below, defendant has not adduced any evidence to substantiate his plea.  Neither Govindasamy Mudaliar nor his family members or manager was examined to prove the defence plea.  Pointing out lack of evidence by concurrent findings of Courts below rightly rejected defence plea that defendant came to be in permissive possession of the suit property on permission from Govindasamy Mudaliar.

12.In the stay petition filed in the High Court in 2006, age of defendant is stated as 46, which means that the defendant must have been born around 1960.  In the trial Court, written statement was filed by the defendant in 2004.  In the written statement defendant averred that he came to be in possession of the property for a quite long time.  It is quite unbelievable that he came to be in possession of the suit property even while he was very young.  According to defendant, his family is in possession of the suit property from lifetime of his father.  Even though defendant claimed to be in possession of suit property by putting up hut from 1947 and paying house tax, defendant has not produced any document to prove his possession.  Ex.A1-Settlement deed, Ex.A2-Adangal and Ex.A3-Chitta would clearly falsify the defence plea.

13.Even though defendant has denied paguthy arrangement with the plaintiff, earlier defendant admitted being a  paguthidar under plaintiff.  As pointed out by Courts below, in response to Ex.A8 notice (22.4.1980), Ex.A9 (06.06.1980) reply was sent.  Admitting payment of paguthy in Ex.A9-reply notice it is averred as follows:-

"My client's son is residing in the property by putting up a superstructure.  He is also paying the paguthy to your client.  He is also entitled to the benefits of the Kudiyiruppu Act"

14.Denying receipt of Ex.A8 notice, learned counsel for defendant contended that a portion of Ex.A9 has been torn and therefore, no reliance could be placed upon contents  in Ex.A9.  As held by Courts below, even though defendant denied  receipt of notice, he has admitted his signature in Ex.A7 acknowledgment.  That apart perusal of Ex.A9 shows that notice has been sent to the plaintiff's counsel.  Even though name of defendant is not there in Ex.A9, it contains name of plaintiff's counsel and plaintiff's name and crucial admission by the defendant being a  paguthidar. There is no force in the contention that Courts below committed error in placing reliance upon Ex.A9.

15.Next limb of argument is that under Ex.A8 tenancy was terminated w.e.f.31.05.1980 and defendant was called upon to hand over vacant possession on 01.06.1980.  Learned counsel for defendant contended that Ex.A8 notice was deliberately suppressed by plaintiff and plaintiff has come out with a plea as if there was a paguthy arrangement w.e.f.01.08.1980 and therefore plaintiff ought to have been non-suited for not coming out with clean hand.  As rightly submitted by learned counsel for respondent/plaintiff, after exchange of notice in 1980, lease might have been renewed.  Merely because there is no mention about Exs.A8 and A9 in the suit, correctness of Exs.A8 and A9 cannot be doubted.

16.Laying stress upon contents in Ex.A8, terminating tenancy w.e.f 31.05.1980, learned counsel for defendant contended that after termination of tenancy, suit was filed in 2003 after a period of 23 years and suit is clearly barred by limitation.  It was further submitted that as per Art.67, 12 years period is stipulated for a landlord to recover possession from a tenant from the time when the tenancy is determined.  Onbehalf of appellant, it was contended that when tenancy was determined even in May 1980, the suit filed in 2003 is clearly barred by limitation.  Contending that date of determination of tenancy is starting point of limitation, learned counsel for appellant/defendant placed reliance upon AIR 1965 Orissa 11, Bhagabat Patnaik and others Vs. Madhusudhan Panda and others.

17.As pointed out earlier after exchange of notice in 1980, lease might have been renewed afresh. In his evidence PW1 has clearly spoken about paguthy arrangement from 31.08.1980,  initially lease rent of Rs.1 per month from 1982 to 1990 and thereafter fixed at Rs.7/- per month.  Plea of limitation was neither raised in the written statement nor made an issue in the trial Court. For the first time, plea of limitation was raised only in the lower Appellate Court.

18.Contending that plea of bar of limitation need not be pleaded and it is a question of law and Court has duty to take note of plea of limitation, learned counsel for defendant  placed reliance upon 1996.1.MLJ, page 1, The Commissioner of Land Administration, Chepauk, Madras and others Vs. The Executive Officer, Arulmighu Theagaraja Swamy Devasthanam, Thiruvarur, Thanjavur in which the First Bench of this Court has held as under:
"....It is a well-known principle of law that if a proceeding instituted is barred by limitation, even the court concerned or the authority before whom such proceedings barred by limitation are instituted itself has a duty and obligation to reject the proceedings as barred by limitation de hors the fact whether such a plea has been set out in defense or not....."

The above decision arises out of proceedings under Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act. In the said proceedings Sec.70 of the Act provides for limitation in respect of the proceedings under the Act.  In the said decision, the question of limitation was a pure question of law.  In such circumstances, First Bench has held that Court has duty and obligation to reject the proceedings whether such a plea of limitation has been set out in defence or not.

19.The ratio of the above decision cannot be applied to the case in hand.  In Civil suits under Or.VIII, R.2.C.P.C, defendant must raise in his pleadings all matters as to fraud, limitation or facts showing illegality.  Order VIII, Rule 2 C.P.C reads as under:
"New facts must be specifically pleaded.  Defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point  of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance or facts showing illegality."
All points either of law or fact which are desired to be taken must be particularly pleaded and they should be stated in the written statement specifically and clearly.  It is well settled that where a claim has never been in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward.  Facts showing non-maintainability of suit because of limitation not pleaded by defendant cannot be raised at close of trial.

20.In this case whether Ex.A8 notice was issued or not and whether tenancy was terminated or not w.e.f.31.05.1980 is a question of fact.  Likewise, whether thereafter tenancy was renewed afresh is also a question of fact.  In such facts and circumstances, the plea of limitation is a mixed question of law and fact and ought to have been pleaded by the defendant.

21.When the question of limitation is purely one of law capable of determination on the facts admitted or proved, the Court is bound to raise it suo motu and decide it.  But where the question of limitation raises issues of fact not arising from the plaint, defendant is bound to raise it in written statement and if he fails to do so, the Court may refuse to allow the question to be raised.  Exs.A8 to A9 were not shown in the plaint.  In the light of denial of lease arrangement, when PW1 was in the box, Exs.8 and A9 were produced.  As pointed out earlier, defendant denied  exchange of notice in May 1980.  While so, based on Exs.A8 and A9 the defendant cannot turn round and contend that the suit is barred by limitation and same was rightly negatived by lower Appellate Court.

22.Plaintiff has established his title by Ex.A1 to A3 and has proved the lease arrangement with the defendant and that defendant has committed default in payment of paguthy.  In a catena of decisions, Supreme Court has held that as general rule, where the findings of the Courts below based on evidence and when the Courts below recorded concurrent findings of fact, High Court will not normally interfere with the concurrent findings of the Courts below exercising jurisdiction under Sec.100 C.P.C (See 2009 (4) LW125 Narayanan Rajendran & another Vs. Lakshmy Sarojini & others)

23.In the result, the judgment of the Lower Appellate Court in  A.S.No.70 of 2005 on the file of the Additional Sub-Court, Mayiladuthurai  confirming the judgment and decree dated 22.12.2004 made in O.S.No.236 of 2003 on the file of the Addl.District Munsif Court, Mayiladuthurai is confirmed and the Second Appeal is dismissed. No costs.
                                                     








gpa

This Second Appeal arises out of judgment in A.S.No.1 of 2005 reversing judgment of the trial Court in O.S.No.163 of 2004 and thereby decreeing the suit, directing the defendant to pay Rs.64,413/- along with subsequent interest and costs. Unsuccessful defendant is the appellant.In the result, Judgment of the lower Appellate Court in A.S.No.1 of 2005 dated 02.01.2006 on the file of Sub Court, Arni, arising out of judgment made in O.S.No.163 of 2004 on the file of District Munsif Court, Polur, is confirmed and this Second Appeal is dismissed.

In the High Court of Judicature at Madras

Dated:      10.11.2009

Coram:

The Honourable Mrs.Justice R.BANUMATHI

Second Appeal No.30 of 2007

R. Saravanan ... Appellant/Defendant

Versus

P.N.Peruvazhuthi ... Respondent/Plaintiff

Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 02.01.2006 made in A.S.No. 1 of 2005 on the file of the Sub Court, Arni, reversing the judgment and decree dated 26.10.2004 made in O.S.No. 163 of 2004  on the file of the District Munsif Court, Polur.

For Appellant .. Mr.N.A.Malai Saravanan
For Respondent .. Mr.S.V.Jayaraman,
                                            Senior Counsel for                   Mr.G.A.Thiyagarajan

JUDGMENT
This Second Appeal arises out of judgment in A.S.No.1 of 2005 reversing judgment of the trial Court in O.S.No.163 of 2004 and thereby decreeing the suit, directing the defendant to pay Rs.64,413/- along with subsequent interest and costs.  Unsuccessful defendant is the appellant.

2. Case of plaintiff is that defendant borrowed a sum of Rs.18,000/- on 10.05.1998 and a sum of Rs.19,300/- on 10.09.1998 from plaintiff and executed Ex.A1 and Ex.A3 Promissory Notes on the same date agreeing to repay the same with interest at the rate of 12% per annum.  Defendant paid a sum of Rs.500/- towards interest on 03.02.2001 and made endorsement (Ex.A2) in the first promissory note) and paid a sum of Rs.500/- towards second promissory note for the part payment of interest on 17.03.2001 and made endorsement (Ex.A4) to that effect.  Stating that inspite of repeated demands defendant did not pay the amount, plaintiff filed suit O.S.No.61 of 2002 for recovery of Rs.52,686/- along with subsequent interest and cost.

3. Defendant resisted the suit denying having approached the plaintiff for financial help to meet his family expenses and to discharge his family debts.  Defendant had not denied execution of his signatures in Ex.A1 and Ex.A3 Promissory Notes.  But, according to defendant, he was conducting a chit and plaintiff joined as subscriber in two chits and plaintiff was successful bidder in 19th and 20th chits and after the chit, defendant was not in a position to pay the chit amount to the plaintiff immediately and at the instance of plaintiff, defendant signed two blank stamped Promissory Notes.  Defendant further averred that within two years, defendant paid the entire chit amount to plaintiff and when asked for return of Promissory Notes, plaintiff stated that Promissory Notes were misplaced and assured that he would return the same as and when he finds Promissory Notes.  According to defendant, because of assurance given by plaintiff, defendant did not insist for any receipt.  Defendant specifically denied Ex.A2 and Ex.A4 endorsement and according to him those endorsements are forged and fabricated.  Defendant further averred that because of enmity, plaintiff has filed the suit based on the forged endorsements.

4. On the above pleadings, five issues were framed in the trial Court.  On issues 1 and 3, trial Court held that since execution of Promissory Notes is admitted by defendant, presumption under Section 118 of Negotiable Instruments Act is available to the plaintiff and issues 1 and 3 were answered accordingly.  Insofar as the genuineness of Exs.A2 and A4 endorsements, trial Court itself compared the disputed signatures of the defendant (Ex.A2 and Ex.A4) and held that there is variance between the disputed signatures and admitted signatures of the defendant which is visible to the naked eye and issue No.2 was answered accordingly.  The trial Court further held that if Ex.A2 and Ex.A4 endorsements are eschewed from evidence the suits would be compared by limitation and on those findings, trial Court dismissed the suit.

5. Aggrieved by the dismissal of suit, plaintiff filed A.S.No.1 of 2005 on the file of Sub Court, Arni.  The lower Appellate Court concurred with the findings of the trial Court that in view of admission of execution of Promissory Notes, the presumption under Section 118 of the Negotiable Instruments Act is to be raised in favour of the plaintiff.   Lower Appellate Court held that it is for the defendant to adduce evidence rebutting the statutory presumption raised under Section 118 of Negotiable Instruments Act. Insofar as the endorsements, on comparison of disputed signatures of the defendant with his admitted signatures, lower Appellate Court expressed its view that there is no variance in the signatures and on Issue No.3, lower Appellate Court reversed the findings of the trial Court and allowed the Appeal holding that the defendant is liable to pay the suit claim along with interest and costs.

6. Being aggrieved by reversal judgment, defendant has filed the Second Appeal.  At the time of admission, following substantial questions of law were formulated for consideration:-
a) Whether the lower Appellate Court is vested with the powers of comparison under Section 73 of the Evidence Act, particularly when the plaintiff had opposed the petition filed by the defendant/appellant for having the document under Exs.A2 and A4 compared through an expert ?

b) Whether the presumption under Sections 114 of the Evidence Act and 118 of the Negotiable Instruments Act available automatically when the passing of consideration and execution is denied by the defendant ?

7. Learned counsel for Appellant submitted that date and amount in Exs.A1 and A3 Promissory Notes will clearly show that only for the purpose of security in lieu of payment of chit amount, the Promissory Notes were executed.  It was further submitted that lower Appellate Court ought to have seen that plaintiff has not taken any steps to prove genuineness of the Endorsements.  It was further argued that in the light of denial of Endorsements, plaintiff ought to have taken steps for sending the documents for obtaining opinion of the Handwriting Expert.  Learned counsel for Appellant further submitted that lower Appellate Court did not properly appreciate the dissimilarities in the signatures found in Exs.A2 and A4 Endorsements.

8. Onbehalf of the respondent, learned Senior Counsel submitted that acceptance of PW.4's evidence as to genuineness of signatures in  Endorsements is a question of fact and High Court will not interfere with such conclusion of fact arrived at by the lower Appellate Court.  It was further submitted that denial of Endorsements by defendant should be viewed in the context of the defendant.  It was further submitted that findings of lower Appellate Court is based upon analysis of evidence and the same cannot be interfered with.

9. Plaintiff who examined himself as PW.1 and Scribe of Promissory Note (PW.2) and Testator (PW.3) have consistently spoken about the date, time and place of execution and also passing of consideration as to Exs.A1 and A3 Promissory Notes.   Defendant has admitted his signatures in Exs.A1 and A3.  Courts below recorded concurrent findings of fact as to the execution of two Promissory Notes (Exs.A1 and A3).  Once execution is admitted, presumption arises under Section 118 of Negotiable Instruments Act.  Burden lies upon the defendant to rebut the presumption.

10. Stand of defendant is that as he was unable to pay the chit amount paid by the plaintiff in chit transactions conducted by the defendant as a security for payment of amount to the plaintiff, defendant signed blank Promissory Notes and gave them to the plaintiff.  Further stand of defendant is that he paid the amount to the plaintiff and plaintiff told him that the Promissory Notes were misplaced and assured to return them.  As pointed out by the lower Appellate Court, defendant had not produced any document to show that he paid the amount.  It is quiet unbelievable that having paid the amount to the plaintiff, defendant did not insist for return of Promissory Notes or receipt.  Defendant has admitted receipt of Exs.A5 and A6 legal notice.  But defendant has not chosen to reply stating about the alleged discharge.

11. For dismissing plaintiff's suit, trial Court held that in Endorsements - Ex.A2 (03.02.2001) and Ex.A4 (17.03.2001) varies from the admitted signatures of the defendant.  Exercising making comparison of disputed signatures of the defendant with his admitted signatures, trial Court arrived at conclusion that signatures of defendant in Exs.A2 and A4 are forged.

12. To prove Exs.A2 and A4 Endorsements and signatures of defendant, thereon, PW.4 Loganathan was examined.  PW.4 had spoken about the payment made by the defendant and Endorsements made and that the defendant signed in the presence of PW.4:- " vd; vjphpy; jhd; gpujpthjp ifbaGj;J nghl;lhh;".  Admittedly, no enmity between defendant and PW.4 Loganathan.  Nothing substantial was elicited from PW.4 to discredit his version.  As rightly submitted by learned Senior Counsel Mr.S.V.Jayaraman, acceptance of evidence of PW.4 is a question of fact which normally the High Court will not interfere.

13. As pointed out earlier, plaintiff issued pre-suit notice  Exs.A5 and A6 (09.01.2002).  Even though defendant received legal notice, defendant has not chosen to send any reply denying the Endorsements.  Non-sending of any reply is a strong militating circumstance against the defendant.

14. Learned counsel for defendant contended that in Ex.A4, Endorsement, principal amount has been stated as Rs.18,000/-, even though principal amount is Rs.19,300/-, which throws serious doubt about the genuineness of Endorsement (Ex.A4), which was not kept in view by the lower Appellate Court.  Mention of principal amount in the endorsement is not much of relevance to disbelieve the genuineness of endorsement merely on the ground of variance in the principal amount stated in Ex.A4.

15. Learned counsel for defendant nextly contended that defendant had taken steps for sending Exs.A2 and A4 for obtaining opinion of Handwriting Expert and the said application was dismissed merely on the objection raised by the plaintiff.  It was therefore submitted that if signatures of the defendant in Exs.A2 and A4 were genuine, plaintiff need not have objected to send the document to Handwriting Expert.  It was also contended that while dismissing the petition, Court made an observation that exercising its power under Section 73 of Indian Evidence Act, Court itself can compare the disputed signature with admitted signature and while so, trial Court cannot faulted for making such comparison and arriving at its own conclusion.

16. The above contention does not merit acceptance.  Petition - I.A.No.2 of 2004 filed under Order 26 Rule 10(a) requesting the Court to send the document to Handwriting Expert came to be dismissed, since the said petition was filed after plaintiff's evidence was over and the defendant was to adduce evidence.  Since the suit was then part-heard, it might have been necessary to dismiss the petition and dismissal of the said petition would not in any way advance the case of the defendant.

17. The trial Court arrived at conclusion that Ex.A2 and Ex.A4 endorsements are forged mainly on comparison of disputed signatures of defendant in Exs.A2 and Ex.A4 with admitted signatures in Ex.A1 and Ex.A3 and other admitted signatures.  Section 73 of Indian Evidence Act enables the Court to compare signature, writing with other admitted signatures.   The first part of the Section 73(1) of the Evidence Act, (I) provides for comparison of signature, writing, finger impression & c, purporting to have been written or made by a person with others admitted or proved to the satisfaction of the Court to have been written or made by the same person.  But it does not specifically say by whom such comparison may be made.  It is clear that such comparison may be made by a handwriting expert (s 45) or by one familiar with the handwriting of the person concerned (s 47) or by the Court (State (Delhi Administration) ..Vs..  Paliram, AIR 1979 SC 14).

18. Under Section 73 of Evidence Act, a Court is competent to compare the disputed writings of a person with other writings which are admitted or proved to be his writings.  Such comparison by the Court is with a view to appreciate properly the other evidence available on record on the question of writings.  It would, however, be too hazardous for a court to use his own eyes and merely on the basis of personal comparison decide a very vital issue between the parties entering ground the handwriting or signature of a person.

19. In AIR 1979 SC 14 (State (Delhi Administration) ..Vs..  Paliram) has held as under:-
"The matter can be viewed from another angle also.  Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself.  It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other, and the prudent course is to obtain the opinion and assistance of an expert."

20. In examining a disputed signature, the most important things are to examine the general characteristics, formation of letters, pen habits and mannerism, it is not the form alone nor any one of the features but a companion of all the qualities are to be kept in view while examining the signature.  The total individuality has to be taken into account in arriving at the decision.  In examining the disputed signature, the true test is not the extent of similarities, but the nature and extent of dissimilarities.

21. In the matter of recognizing handwritings, there is bound to be abundant source of mistakes.  However if signature/handwriting is disputed, it is always desirable to obtain opinion of the handwriting expert.  Though under Section 73 of Indian Evidence Act, the Court is competent to use its own eyes for deciding whether certain handwriting placed before it are similar or not, it is not desirable for the Court to arrive at the conclusion on its own comparison.  On comparison the opinion formed by the Court only be a piece of evidence, to appreciate other evidence adduced.  While so trial Court erred in basing its conclusion solely on the opinion formed by it on comparison of signature of Defendant in Exs.A2 and A4 with admitted signature.

22. Upon analysis of evidence, lower Appellate Court rightly reversed the findings of trial Court.  When the findings of lower Appellate Court is based upon evidence and materials on record, the High Court will not interfere unless shown to be perverse.  The findings of lower Appellate Court cannot be said to be perverse warranting interference exercising jurisdiction under Section 100 C.P.C.

23. In the result, Judgment of the lower Appellate Court in A.S.No.1 of 2005 dated 02.01.2006 on the file of Sub Court, Arni, arising out of judgment made in O.S.No.163 of 2004 on the file of District Munsif Court, Polur, is confirmed and this Second Appeal is dismissed.  In the circumstances of the case, there is no order as to costs.









mra

To

1. The Sub Judge, Arni.

2. The District Munsif,
Polur