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2003 DIGILAW 261 (AP)

Dasu Jaya Vani v. Bala Seethapati

2003-02-18

D.S.R.VERMA

body2003
D. S. R. VARMA, J. ( 1 ) SINCE the issue involved in both the Civil Revision Petitions is interrelated and the parties being the same, they are disposed of by this common order. ( 2 ) C. R. P. No. 6018 of 2001 is filed challenging the order and decree, dated 21-12-2001, rejecting the application in I. A. No. 3222 of 2001 in O. S. No. 166 of 1997 filed under Section 151 of the Code of Civil Procedure to reopen the suit to examine two witnesses on their behalf, while C. R. P. No. 440 of 2002 is filed challenging the order and decree, dated 21-12-2001, rejecting the application in I. A. No. 3223 of 2001 in O. S. No. 166 of 1997, filed under Order 26, Rule 11 of the Code of Civil Procedure to issue a commission for examination of two witnesses mentioned in the affidavit, filed in support of the application. ( 3 ) PETITIONERS are defendants 2 to 4 (for brevity "d-2 to D-4") and respondents are plaintiffs. This suit is filed for partition. ( 4 ) FOR the sake of convenience, the parties are being referred as defendants and plaintiffs. ( 5 ) THE main contention of D-2 to D-4 in the suit was that a will, dated 17-7-1969, was executed by their maternal grand mother. Since the mother of D-2 to D-4 predeceased her mother, again a deed of settlement, dated 17-3-1979, was executed by the grand mother of D-2 to D-4. These are the two documents on which D-2 to D-4 are relying on for claiming item No. 4 of suit schedule property. The 1st defendant is also claiming item No. 4 of the suit schedule property through the very same documents, marked as Exs. B-2 and B-7. These are the two documents on which D-2 to D-4 are relying on for claiming item No. 4 of suit schedule property. The 1st defendant is also claiming item No. 4 of the suit schedule property through the very same documents, marked as Exs. B-2 and B-7. ( 6 ) IT appears that the application in I. A. No. 2102 of 2000 was filed by the General Power of Attorney Holder (for brevity "the GPA Holder") of D-2 to D-4, who is no other than the father of D-2 to D-4, to examine himself on behalf of D-2 to D-4 and the same was dismissed on 20-11-2000 and subsequently the application in I. A. No. 2363 of 2000 was filed by the very same GPA Holder to get himself examined as a witness on behalf of D-2 to D-4 and the same was allowed by the Court below through order, dated 20-12-2000. ( 7 ) IT appears that by virtue of the order, dated 7-4-2000, in A. A. O. No. 2720 of 1999, filed by the plaintiffs, a time schedule was fixed as prescribed by this Court to dispose of the suit. In that process, the GPA Holder was to be examined on 11-12-2001 and at that time a request was made to adjourn the matter on medical grounds, which was rejected. However, the trial went on and the other defendants were examined. ( 8 ) IT is to be noted that D-2 to D-4 are the grand children of the original testator. Exs. B-2 and B-7 are the crucial documents for D-2 to D-4 to have a claim in item No. 4 of the suit schedule property. It is not in dispute that D-2 to D-4 were minors as on the date of execution of the said two documents. ( 9 ) LEARNED counsel for the plaintiffs vehemently contends that the said two documents were already marked as Exs. B-2 and B-7 through defendants 1 and 10 and hence there is no need to examine somebody to substantiate the recitals of Exs. B-2 and B-7. ( 10 ) FROM the above, it appears that the claims of defendants 1 and 10 were also based on Exs. B-2 and B-7 along with D-2 to D-4 over different parts of suit schedule property. Since D-2 to D-4 were minors at the time of execution of Exs. B-2 and B-7. ( 10 ) FROM the above, it appears that the claims of defendants 1 and 10 were also based on Exs. B-2 and B-7 along with D-2 to D-4 over different parts of suit schedule property. Since D-2 to D-4 were minors at the time of execution of Exs. B-2 and B-7, somebody should speak about the execution of said documents as well as the recitals therein. The only person who can substantiate the execution of the said documents and the recitals therein is the father of D-2 to D-4, who in turn is no other than the GPA holder of D-2 to D-4. ( 11 ) NO doubt, the suit was tried and the matter was already posted for arguments. Apparently, there is some delay in filing the present application. But this Court cannot ignore the fact that the said suit was filed for partition and all the parties must be given reasonable opportunity. The veracity or otherwise of the reasons given by the GPA holder of D-2 to D-4 for his abstinence on 11-12-2001 and examine himself as witness cannot be commented by this Court at this point of time. However, the fact remains that he is the only person who can substantially support the case of D-2 to D-4. In the event of his failure to do so, for any reason or may be due to negligence, it is D-2 to D-4 who are the losers, and, in my considered view, their rights have to be substantially and effectively defended. Hence, the present applications filed by D-2 to D-4, in my considered view, have to be accepted in order to avoid apparent disadvantage that is likely to be caused to them. ( 12 ) SIMILARLY, when D-2 to D-4 are trying to substantiate their case, by examining the scribe of Exs. B-2 and B-7, the learned counsel for the plaintiffs submits that since Exs. B-2 and B-7 are already on record and their execution is not in dispute, there is no need to examine any other witness. This contention also may not be correct. Mere admission of documents is something different from admission of the recitals therein. Apparently, the recitals of Exs. B-2 and B-7 are not admitted. Hence, it is necessary to examine somebody on behalf of D-2 to D-4. This contention also may not be correct. Mere admission of documents is something different from admission of the recitals therein. Apparently, the recitals of Exs. B-2 and B-7 are not admitted. Hence, it is necessary to examine somebody on behalf of D-2 to D-4. When such an application is made, though belatedly, in my considered view, having regard to the nature of suit i. e. , for partition, it is always expedient to give an opportunity to D-2 to D-4 to examine witnesses on their behalf. ( 13 ) HAVING regard to the facts and circumstances of the case, I am inclined to permit D-2 to D-4 to examine the two witnesses mentioned in the affidavit, filed in support of the applications, on a specific date to be fixed by the Court below after reopening the suit. Hence, the impugned orders, dated 21-12-2001, passed by the Court below are liable to be set aside and accordingly, they are set aside. ( 14 ) FOR the foregoing reasons, both the Civil Revision Petitions are allowed with a direction to the Court below to fix an early date to examine the two witnesses mentioned in the affidavit, filed in support of the applications, on behalf of D-2 to D-4, within a period of one week from the date of receipt of a copy of this order. However, there shall be no order as to costs. ( 15 ) IT is made clear that in the event of failure on the part of D-2 to D-4 to examine witnesses mentioned in the affidavit, filed in support of the applications, on the date to be fixed by the Court below, further proceedings in the matter shall follow. Petition allowed.