Decided on September 10,1970

M. Avanashiappa Gounder Appellant
K.C.P. Muthulakshmi Ammal Respondents


G. Ramanujam, J. - (1.) THERE was a suit, O.S. No. 134 of 1959, on the file of the Sub -Court, Coimbatore for partition filed by one Patulinga Nataraja Gounder against his father and his two brothers claiming certain properties as joint family properties and seeking a partition and separate possession of his share. In that suit the appellant herein was appointed as an Arbitrator and he submitted his Award to the Court along with three documents an account book and also two statements given by one K.S. Ramaswami Gounder and K.S. Palaniswami Gounder who were the grand -father and grand -uncle respectively of the plaintiff. The Court passed a decree on the basis of the said Award on 26th March, 1960. The said K.S. Ramaswami Gounder, who gave one of the statements before the Arbitrator died on nth September, 1965. On 18th September, 1965, the appellant filed an application to the Court for the return of the documents submitted along with the Award on the ground that he has to return the same to the parties concerned. As the parties to the suit did not have any objection the Court ordered the return of the documents and the appellant got back the same.
(2.) SUBSEQUENTLY one Arumugam, the brother of the plaintiff in the earlier suit filed O.S. No. 310 of 1965 for partition of the properties left by the deceased K.S. Ramaswami Gounder, the paternal grandfather, claiming those properties as joint family properties. The fourth defendant in that suit, the respondent herein was the daughter of the said Ramaswami Gounder and the paternal aunt of the plaintiff. It was her case that the properties left by Ramaswami Gounder were his exclusive properties and that the plaintiff has no right to seek partition of his properties. She filed an application on 5th July, 1966, under Order 16, rule 10 of the Code of Civil Procedure to compel the appellant, the arbitrator in the earlier suit, to produce the documents taken return of by him from Court by taking coercive steps by way of arrest. She alleged in her affidavit in support of the above application that the plaintiff in the present suit his father and brothers have colluded together and caused the Arbitrator to take back the "depositions" of Ramaswami Gounder and Palaniswami Gounder filed into Court in the earlier suit, apprehending that they will be confronted with these depositions, that the Arbitrator also had colluded with the parties and has acted against the provisions of law in applying and getting the return of the documents from the Court, that they are valuable documents to establish her defence in the suit, that the Arbitrator when summoned to produce the said documents had not produced the same on the pretext that they have been lost, and that the Arbitrator is keeping back the documents purposely to help the plaintiff and his father and brothers. The appellant filed a counter -affidavit pleading that after taking return of the documents he was having them in his house, that as soon as he received the summons from the Court for their production he searched in his house, that he was able to find only the account book which he had produced into the Court, that the statements given by Ramaswami Gounder and Palaniswami Gounder before him as Arbitrator could not be traced, and that he will make an effort to trace the same and put them into Court as soon as he is able to trace them. The Court below, by its order dated 22nd February, 1969, thought it fit to grant time till 15th March, 1969, to the appellant to make a search and to either produce the two statements or file an affidavit in Court in regard to the loss of the same. When the matter was taken up by the Court on 8th April, 1969, the Counsel for the appellant represented to the Court that the documents directed to be produced could not be traced and as such the appellant was not in a position to produce the same. The lower Court felt that in the face of the allegation of the respondent that the appellant has played into the hands of the plaintiff, it was the appellant's duty to clear himself of the said imputation by producing the documents, that his explanation that the statements are not traceable or lost was difficult to believe especially when one of the documents returned had been made available. He therefore took the view the documents should be with the appellant and that he is suppressing the same probably to help the plaintiff in the suit, and on that view he ordered his arrest and detention in civil prison until he produces the said two statements. It is against this order the appellant has come to his Court.
(3.) THERE was some dispute between the parties as to the nature of the documents directed to be produced. In the Award filed by the appellant in the earlier suit, they are referred to as sworn statements. In the application filed by the respondent, these documents are referred to as depositions. But a perusal of the order of the Court directing the return of the documents in O.S. No. 134 of 1959 shows that they were affidavits. It is not also possible to definitely say as to what was the nature of those documents from the records available before this Court. It is however, reasonable to assume that they were sworn statements given by Ramaswami Gounder and Palaniswami Gounder as referred to in the Award. The interesting question that arises for consideration in this case is as to whether the Court can order the arrest of a witness who has failed to produce a document sought for by a party and detain him in civil prison till he produces the document.;

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