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2002 DIGILAW 967 (AP)

Venkata Ramana Agencies v. Koppu Guranna

2002-08-07

C.Y.SOMAYAJULU

body2002
C. Y. SOMAYAJULU, J. ( 1 ) SINCE all these C. R. Ps. , arise out of interlocutory applications filed in the same suit, they are being disposed of by a common order. ( 2 ) C. R. P. NO. 2204 of 2002 arise out of i. A. No. 1891 of 2001 filed under Order XVIII rule 3 C. P. C. , to permit the revision petitioners (plaintiffs) to adduce rebuttal evidence. C. R. P. No. 2205 of 2002 arises out of i. A. No. 756 of 2002 filed under Order XVI rule 1 C. P. C. , to permit the revision petitioners (plaintiffs) to summon the documents mentioned therein and c. R. P. No. 2206 of 2002 arises out of i. A. No. 757 of 2002 filed under Order XVI rule 2 C. P. C. , by the revision petitioners (plaintiffs) to receive the list of witnesses to be examined in rebuttal evidence. ( 3 ) REVISION petitioners filed the suit for recovery of the suit amount from the respondents (defendants) alleging that revision petitioners 2 to 5 are the partners of 1st revision petitioner and that respondents by playing fraud, misappropriated the amounts belonging to the 1st revision petitioner firm. Respondents filed written statements contesting the suit. While closing their evidence, revision petitioners filed i. A. No. 189 of 2001 reserving their right to adduce rebuttal evidence. After respondents adduced their evidence, revision petitioners filed I. A. Nos. 756 and 757 of 2002 seeking permission of the Court to summon certain documents and to receive additional list of witnesses to be examined them during lebuttal evidence. All the three petitions were dismissed by a common order on the ground that when the burden of proof on all the issues is on them, question of revision petitioners reserving their right to adduce rebuttal evidence does not arise. Hence these revisions. All the three petitions were dismissed by a common order on the ground that when the burden of proof on all the issues is on them, question of revision petitioners reserving their right to adduce rebuttal evidence does not arise. Hence these revisions. ( 4 ) THE contention of Sri D. Ramalinga swamy, learned counsel for revision petitioners is that inasmuch as the burden of proof on all the issues settled by the trial court is on the revision petitioners, though question of revision petitioners reserving their right to adduce rebuttal evidence as of right may not arise, since revision petitioners do have a right to seek permission to adduce further evidence, i. A. No. 1891 of 2001 filed for permission to adduce rebuttal evidence should have been considered as a petition for permission to adduce further evidence inasmuch as quoting a wrong provision is not a ground for rejecting a petition and the Court can, in order to do substantial justice, pass such orders as may be appropriate, without causing prejudice to the other side. He relied on R. Manjunadha Sarma v. Union Bank of india, Knrnool, represented by its Branch manager, Knrnool in support of his contention. The contention of Sri P. R. Prasad, learned counsel for respondents is that revision petitioners who filed the suit alleging fraud have to establish the fraud allegedly played by the respondents and contended that since the documents sought to be summoned are all fixed deposits in the name of the respondents, who come from very affluent family, by production of those fixed deposits and other documents, revision petitioners cannot prove their case and since. the revision petitioners did not furnish any list of witnesses to be examined by them with I. A. No. 757 of 2002, the question of allowing I. A. No. 757 of 2002 does not arise. He placed strong reliance on sajana Granites, Madras and another v. Manduva Srinivasa Rao and others in support of his contention that rebuttal evidence can be adduced only in respect of the issues on which the burden of proof is on the defendants. He placed strong reliance on sajana Granites, Madras and another v. Manduva Srinivasa Rao and others in support of his contention that rebuttal evidence can be adduced only in respect of the issues on which the burden of proof is on the defendants. He also contended that since the annexure to the written statement shows that for all the drafts that were encashed, fresh drafts were issued and since the amounts were in fact sent by way of drafts to the companies, question of respondents 1, 2 and 4 enriching themselves by misappropriating amount belonging to the revision petitioners does not arise. ( 5 ) THERE can be no dispute for the proposition that in cases where the burden of proof on all the issues is on the plaintiff, question of his reserving a right to adduce rebuttal evidence does not arise. In fact the learned counsel for revision petitioners fairly conceded that the question of seeking permission to adduce evidence in rebuttal, as of right, was erroneous and contended that instead of treating that petition as a petition for adducing rebuttal evidence it should have been treated as a petition seeking permission to adduce further evidence. Here it should be stated that when a plaintiff intends to reserve his right to adduce rebuttal evidence it is not necessary to file a petition for the said purpose. A memo informing the Court that in respect of the issues on which the burden of proof is on the defendant, plaintiff is reserving his right to adduce rebuttal evidence would suffice. Such Memo must be filed before the defendant starts adducing his evidence. If plaintiff does not file such a Memo and wants to adduce rebuttal evidence after defendant closes his evidence, he must file a petition seeking permission of the Court to adduce further evidence or evidence in rebuttal. In this case since the burden of proof on all the issues is on the revision petitioners, the petition filed by them can be treated as a petition to adduce further evidence on their behalf. In this case since the burden of proof on all the issues is on the revision petitioners, the petition filed by them can be treated as a petition to adduce further evidence on their behalf. In R. Manjunadha sarma case (supra) relied on by the learned counsel for the revision petitioners, ramaswamy, J. , held that when additional evidence can be allowed to be adduced in appellate stage also, in a case where the suit is still at the stage of trial, parties can be permitted to adduce fresh evidence on their behalf. Till arguments are heard and judgment is reserved, the suit is deemed to be at the stage of trial. In this case arguments are not yet heard. So it should be treated that it is in the stage of trial only. ( 6 ) QUOTING a wrong provision of law by itself is not a ground for dismissing a petition when the relief claimed in the petition can be granted under some other provision of the C. P. C. Therefore in spite of the fact that I. A. No. 1891 of 2001 is filed under Order XVIII Rule 3 C. P. C. , it can be treated as a petition seeking leave to adduce further evidence, because Court should be liberal in permitting the parties to adduce such evidence as they wish to bring on record,provided it is not an abuse of process of Court or a part of delaying tactics. Since the burden of proof on all issues is on the revision petitioners, when they are permitted to adduce further evidence, automatically respondents would be clothed with a right to adduce further evidence they may choose to adduce on their behalf to rebut the evidence adduced by the revision petitioners. ( 7 ) THE question as to whether the employees of respondents 1, 2, and 4 fraudulently encashed the drafts belonging to the revision petitioners or not, need not be gone into at this stage because it is a matter to be decided by the trial Court taking into consideration the evidence adduced at the. time of trial. Therefore I am not going into the question whether the particulars given in the Annexure to the written statement filed by 3rd respondent relates to the amounts covered by the suit or not. ( 8 ) THE contention of the learned counsel for the petitioners (sic. time of trial. Therefore I am not going into the question whether the particulars given in the Annexure to the written statement filed by 3rd respondent relates to the amounts covered by the suit or not. ( 8 ) THE contention of the learned counsel for the petitioners (sic. respondents) that no separate list of witnesses to be examined is given by the revision petitioners does not appear to be correct because along with i. A. No. 756 of 2002 revision petitioners gave the list of witnesses to whom they wish to take out summons. The same list is furnished along with I. A. No. 757 of 2002. So it is clear that revision petitioners intend to examine only those persons to whom they would take out summons to produce documents etc. Since the witnesses to be summoned are the Branch Managers of banks and Superintendent of Post Office, vizianagaram, they are all official witnesses and they speak from the documents which are available with them. So in my considered opinion respondents would not be prejudiced if permission to adduce evidence of those official witnesses is given to the revision petitioners, more so because they would have an opportunity to adduce evidence on their behalf, after the revision petitioners adduce their evidence. ( 9 ) FOR the above reasons, all the Revisions are allowed by making it clear that after revision petitioners adduce their evidence, respondents are at liberty to adduce fresh evidence on their behalf. Revision petitioners should take out summons to witnesses immediately and examine those witnesses as expeditiously as possible. The trial Court shall dispose of the suit as expeditiously as possible, at any rate before the end of December. 2002. No costs.