Mogulla Ailamma and Others Vs. Samba Yellaiah and Another - Court Judgment

Excerpt:
civil - furnishing of evidence - order 6 rule 5 of code of civil procedure, 1908 - defendant filed application under order 6 rule 5 to seek direction to plaintiffs to disclose their evidence - necessary particulars already disclosed by plaintiffs - plaintiffs cannot be compelled to disclose information in nature of evidence - defendant's application rightly dismissed by lower court. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - 3. the learned counsel for the petitioner submits that the particulars required by the defendants would only result in better statement of the nature of the claim of the plaintiffs and by dismissing the defendants' application the lower court failed to exercise jurisdiction vested in it. it also lays down that where the forms in appendix-a are not applicable, forms of the like character as nearly as may be shall be used in all pleadings. ' 5. the averments disclose that the plaintiffs pleadings are in accordance with rule 3 of order vii, in that, numbers in the record of survey have been clearly mentioned. the other aspects like the date of purchase, the date of partition, the names of the attesters, scribe and mediators are all matters of evidence and the plaintiffs cannot be compelled to disclose them to the defendants.order1. the defendants in os no.119 of 1996 on the file of the court of the district munsif, warangal, are the petitioners. the respondents/plaintiffs filed a suit for declaration and perpetual injunction in respect of the suit schedule property. their plaint case is that they purchased the suit schedule property jointly which was subsequently partitioned between plaintiff and others. the defendants claiming title to the land are trying to interfere with the plaintiffs' enjoyment.2. the defendants filed an application under order vi, rule 5 of code of civil procedure, 1908 ('cpc' for brevity) seeking a direction from the trial court to the plaintiffs to furnish particulars as to (i) when the division took place between the plaintiffs and sailu; (ii) who was the scribe and elders for the division of the lands; (iii) the date, month and year of alleged joint purchase and (iv) the names of scribes and attesters and payment of consideration amount. the application being ia no.265 of 1997 was opposed by the plaintiffs contending that the provisions of order vi were complied with by the plaintiffs duly pleading the material facts and that the defendants by filing the application are trying to extract the evidence from the respondents and therefore such application is not maintainable. the trial court relying on the judgment in a.h. bhat v. k.r. pictures, : air1987kant101 , came to a conclusion that under rule 5 of order vi the defendant is not entitled to seek a direction to the plaintiffs to disclose their evidence. aggrieved by the order dated 13-11-1997 dismissing ia no.265 of 1997, the present civil revision petition is filed.3. the learned counsel for the petitioner submits that the particulars required by the defendants would only result in better statement of the nature of the claim of the plaintiffs and by dismissing the defendants' application the lower court failed to exercise jurisdiction vested in it. the learned counsel for the respondents/plaintiffs submits that the defendants are not entitled to ask for evidence as to the particulars of date, month and year of division, mediators presence during the partition and the names of scribe and attesters, who witnesses execution of the document and payment of consideration.4. order vi of cpc deals with pleadings generally, whereas order vii deals with the pleadings in the 'plaint' and order viii deals with 'written statement, set off and counter claim'. rule 3 of order vi is a provision, which is directory to the effect that the forms of pleadings in appendix-a to cpc when applicable shall be used for all pleadings. it also lays down that where the forms in appendix-a are not applicable, forms of the like character as nearly as may be shall be used in all pleadings. appendix-a does not contain a form for a suit for declaration and injunction. therefore, appendix-a is of no avail. order viii, rule 3 deals with the pleading where the subject-matter of the suit is immovable property. it lays down that where the subject-matter of suit is immovable property the plaint shall contain (i) description of the property sufficient to identify the property and (ii) in case, the immovable property can be identified by the boundaries or numbers in record of statement or survey, the plaint shall specify such boundaries or numbers. in any suit, where subject-matter is immovable property, compliance with rule 3 of order vii is sufficient compliance and the provision in rule 5 of order vi has no place. order vi, rule 16 which empowers the court to strike out the pleadings, also does not contain anysituation where the plaint allegedly contains, insufficient particulars. therefore, when the plaintiffs give the particulars of the boundaries or the numbers in a record of statement or survey of the immovable property, which is the subject-matter of the suit, it shall have to presumed that sufficient particulars are given. while adjudicating the application under order vi, rule 5, the trial court has to keep this in view. in the present case, the petitioners/defendants in their affidavit accompanying ia no.265 of 1997 stated as under:'i submit that respondents have filed the suit seeking declaration of title and permanent injunction with an ia no.259 of 1996 seeking temporary injunction in respect of survey number 851 to an extent of ac.5.08 gts out of ac.10.16 gts. dry situated at inapur village of cherial revenue mandal of warangal district. i submit that respondents have pleaded at para no.3 of the plaint that the agriculture land of ac.10.16 gts. dry covered by survey no.851 situated at inapur village has been purchased jointly by the defendant no.1's husband and plaintiffs jointly which is an utter lie. when he was called upon to produce the same, through ia no.271 of 1996 he has taken a dishonest and false plea that it is with the defendants. in fact to the knowledge of these defendants such a document does not exist nor was it the case of the plaintiffs in the suit. however the falsity of the plea will be exposed in due course.' 5. the averments disclose that the plaintiffs pleadings are in accordance with rule 3 of order vii, in that, numbers in the record of survey have been clearly mentioned. the other aspects like the date of purchase, the date of partition, the names of the attesters, scribe and mediators are all matters of evidence and the plaintiffs cannot be compelled to disclose them to the defendants. this view is also supported by the judgment in a.h. bhatt's case (supra) relied on by the learned counsel for the respondents/plaintiffs.6. therefore, it should be held that the trial court has not committed any error in exercise of jurisdiction and the impugned order does not suffer from illegality or material irregularity. the civil revision petition is accordingly dismissed with costs.

Judgment:
ORDER

1. The defendants in OS No.119 of 1996 on the file of the Court of the District Munsif, Warangal, are the petitioners. The respondents/plaintiffs filed a suit for declaration and perpetual injunction in respect of the suit schedule property. Their plaint case is that they purchased the suit schedule property jointly which was subsequently partitioned between plaintiff and others. The defendants claiming title to the land are trying to interfere with the plaintiffs' enjoyment.

2. The defendants filed an application under Order VI, Rule 5 of Code of Civil Procedure, 1908 ('CPC' for brevity) seeking a direction from the trial Court to the plaintiffs to furnish particulars as to (i) when the division took place between the plaintiffs and Sailu; (ii) who was the scribe and elders for the division of the lands; (iii) the date, month and year of alleged joint purchase and (iv) the names of scribes and attesters and payment of consideration amount. The application being IA No.265 of 1997 was opposed by the plaintiffs contending that the provisions of Order VI were complied with by the plaintiffs duly pleading the material facts and that the defendants by filing the application are trying to extract the evidence from the respondents and therefore such application is not maintainable. The trial Court relying on the judgment in A.H. Bhat v. K.R. Pictures, : AIR1987Kant101 , came to a conclusion that under Rule 5 of Order VI the defendant is not entitled to seek a direction to the plaintiffs to disclose their evidence. Aggrieved by the order dated 13-11-1997 dismissing IA No.265 of 1997, the present civil revision petition is filed.

3. The learned Counsel for the petitioner submits that the particulars required by the defendants would only result in better statement of the nature of the claim of the plaintiffs and by dismissing the defendants' application the lower Court failed to exercise jurisdiction vested in it. The learned Counsel for the respondents/plaintiffs submits that the defendants are not entitled to ask for evidence as to the particulars of date, month and year of division, mediators presence during the partition and the names of scribe and attesters, who witnesses execution of the document and payment of consideration.

4. Order VI of CPC deals with pleadings generally, whereas Order VII deals with the pleadings in the 'plaint' and Order VIII deals with 'written statement, set off and counter claim'. Rule 3 of Order VI is a provision, which is directory to the effect that the forms of pleadings in Appendix-A to CPC when applicable shall be used for all pleadings. It also lays down that where the Forms in Appendix-A are not applicable, Forms of the like character as nearly as may be shall be used in all pleadings. Appendix-A does not contain a Form for a suit for declaration and injunction. Therefore, Appendix-A is of no avail. Order VIII, Rule 3 deals with the pleading where the subject-matter of the suit is immovable property. It lays down that where the subject-matter of suit is immovable property the plaint shall contain (i) description of the property sufficient to identify the property and (ii) in case, the immovable property can be identified by the boundaries or numbers in record of statement or survey, the plaint shall specify such boundaries or numbers. In any suit, where subject-matter is immovable property, compliance with Rule 3 of Order VII is sufficient compliance and the provision in Rule 5 of Order VI has no place. Order VI, Rule 16 which empowers the Court to strike out the pleadings, also does not contain anysituation where the plaint allegedly contains, insufficient particulars. Therefore, when the plaintiffs give the particulars of the boundaries or the numbers in a record of statement or survey of the immovable property, which is the subject-matter of the suit, it shall have to presumed that sufficient particulars are given. While adjudicating the application under Order VI, Rule 5, the trial Court has to keep this in view. In the present case, the petitioners/defendants in their affidavit accompanying IA No.265 of 1997 stated as under:

'I submit that respondents have filed the suit seeking declaration of title and permanent injunction with an IA No.259 of 1996 seeking temporary injunction in respect of Survey Number 851 to an extent of Ac.5.08 gts out of Ac.10.16 gts. dry situated at Inapur village of Cherial Revenue Mandal of Warangal District.

I submit that respondents have pleaded at para No.3 of the plaint that the agriculture land of Ac.10.16 gts. dry covered by Survey No.851 situated at Inapur village has been purchased jointly by the defendant No.1's husband and plaintiffs jointly which is an utter lie. When he was called upon to produce the same, through IA No.271 of 1996 he has taken a dishonest and false plea that it is with the defendants. In fact to the knowledge of these defendants such a document does not exist nor was it the case of the plaintiffs in the suit. However the falsity of the plea will be exposed in due course.'

5. The averments disclose that the plaintiffs pleadings are in accordance with Rule 3 of Order VII, in that, numbers in the record of survey have been clearly mentioned. The other aspects like the date of purchase, the date of partition, the names of the attesters, scribe and mediators are all matters of evidence and the plaintiffs cannot be compelled to disclose them to the defendants. This view is also supported by the judgment in A.H. Bhatt's case (supra) relied on by the learned Counsel for the respondents/plaintiffs.

6. Therefore, it should be held that the trial Court has not committed any error in exercise of jurisdiction and the impugned order does not suffer from illegality or material irregularity. The civil revision petition is accordingly dismissed with costs.