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Andhra High Court · body

2004 DIGILAW 121 (AP)

M. Sekhara Reddy v. M. Satyanarayana

2004-02-04

D.S.R.VERMA

body2004
D. S. R. VARMA, J. ( 1 ) THIS Civil Revision Petition is filed challenging the order, dated 22-9-2003, passed by the Principal Junior Civil Judge at nandikotkur, dismissing the application in i. A. No. 403 of 2003 in O. S. No. 41 of 2002, filed under Order-21 Rule 58 of the Code of civil Procedure to summon the witness, who is the counsel, to give evidence and also to produce the copy of original petition and pattadar pass book, which were filed in e. P. No. 167of2000. ( 2 ) THE petitioner is 1st defendant, 1st respondent is plaintiff and 2nd and 3rd respondents are 2nd and 3rd defendants. ( 3 ) FOR the sake of convenience, petitioner, 1st respondent and 2nd and 3rd respondents will be referred to as "1st defendant, plaintiff and 2nd and 3rd defendants" respectively. ( 4 ) THE 1 st defendant filed an application in the present suit to summon the counsel for the plaintiff, who filed an application under order-21 Rule 58 of the Code of Civil procedure, in the earlier suit. ( 5 ) THE facts, in brief, are that the 1st defendant filed O. S. No. 150 of 1998 against the 2nd defendant for recovery of money. The said suit was decreed and E. P. No. 167 of 2000 was filed, and during the sale proceedings, the plaintiff and his son filed an application under Order-21 Rule 58 of the code of Civil Procedure. It appears that the copy of the said petition was served on the counsel of the 1st defendant in the present suit. It appears that the said petition was presented after service of notice to the counsel appearing for the 1st defendant, but the same was not represented after its return with some objections and eventually the sale was confirmed in favour of the 1 st defendant, who was highest bidder in the auction proceedings in E. P. No. 167 of 2000. ( 6 ) THE plaintiff filed the present suit for a declaration of title over the suit schedule property and also for a declaration that the sale held in E. P. No. 167 of 2000 in o. S. No. 150 of 1999 is not binding on him. ( 6 ) THE plaintiff filed the present suit for a declaration of title over the suit schedule property and also for a declaration that the sale held in E. P. No. 167 of 2000 in o. S. No. 150 of 1999 is not binding on him. The 1 st defendant appears to have refuted the plaint averments stating that he was the highest bidder in the sale proceedings in e. P. No. 157 of 2000 and in the said sale proceedings, the plaintiff and his son filed a claim petition. But, upon return of the said papers by the office, the then counsel appearing for the plaintiff did not represent the said claim petition and hence the sale was effected in favour of the 1 st defendant. It is his further contention that the plaintiff had the knowledge about the earlier sale proceedings in E. P. No. 167 of 2000 and having such a knowledge and also having filed a claim petition under Order 21 Rule 58 of the Code of Civil Procedure, cannot take a new turn now and say that the sale held in e. P. No. 167 of 2000 in O. S. No. 150 of 1999 does not bind him and hence he cannot seek a declaration of title to the suit schedule property in his favour. ( 7 ) THE learned counsel appearing for the 1st respondent contends that in the light of the specific contention of the plaintiff that he had no knowledge of the earlier sale proceedings, it has become imperative for him to refute the said averments of plaintiff by way of examining the counsel, who appeared for plaintiff in the earlier proceedings in E. P. No. 167 of 2000, in order to establish that the plaintiff had the knowledge of the earlier E. P. Proceedings and his participation in the said proceedings by way of filing an application under order 21 Rule 58 of the Code of Civil procedure. The said application was dismissed, as not maintainable, by the court below on the ground that as per Section 126 of the Indian Evidence Act, no Advocate shall be permitted to adduce evidence unless with the express consent of his client to disclose any communication made to him in the course of his employment as such advocate or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment. ( 8 ) THE learned counsel for the 1st defendant further relies on the judgment of this court in "billa Venkata Papi Reddy v. A. Krishna Rao" wherein his Lordship held:"question of privilege arises only when either the advocate or the client are asked to disclose the professional communication made between them. When the communication is put in the form of writing and is made known to others is no confidentiality for either the client or the advocate claiming privilege under Sec. 126 of Evidence act. " ( 9 ) IN this context, the only and simple question that falls for consideration in this civil Revision Petition is whether it is necessary for this court or for the court below to go into the aspect of the scope of Sec. 126 of the Indian Evidence Act? ( 10 ) IF we fall back upon the facts, it is to be seen that the 1st defendant wants to establish that the plaintiff had the knowledge of earlier proceedings in E. P. No. 167 of 2000 in O. S. No. 150 of 1999 inasmuch as an application under Order 21 Rule 58 of the code of Civil Procedure was filed by him and his son and that a copy of the said application had been served on the other- side counsel i. e. , the counsel representing the defendants, in the earlier suit. Therefore, it is being contended by the 1st defendant that in order to establish that the plaintiff had the knowledge of earlier proceedings and therefore the plaintiff cannot file the present suit seeking declaration of title and also a declaration that the sale held in E. P. No. 167 of 2000 in O. S. No. 150 of 1999 does not bind him as he was not a party to the said execution proceedings. Therefore, the only option left to him, according to the learned counsel for the 1 st defendant, is to prove the said factum of knowledge on the part of the plaintiff about the earlier proceedings is imperative to examine the Advocate, who drafted and filed the application on behalf of the plaintiff, under Order 21 Rule 58 of the code of Civil Procedure. ( 11 ) WHEN it was questioned by this court as to how the 1 st defendant came to know about the filing of the said application under order 21 Rule 58 of the Code of Civil procedure in E. P. No. 167 of 2000 in o. S. No. 150 of 1999, the learned counsel for the 1st defendant answered that a copy of the said petition was served on the counsel of 1 st defendant and that is how he came to know that an application under Order 21 rule 58 of the Code of Civil Procedure was filed by the plaintiff and his son in the earlier e. P. proceedings. ( 12 ) IT is to be seen that mere service of a copy of the petition on the other-side counsel, in normal course, cannot be treated as conclusive proof of the factum of actual presentation of the original of such petition into the court unless and until such presentation has been recorded by the court in the concerned records. ( 13 ) THE learned counsel for the 1st defendant goes on submitting that upon verification of the records of the court below, it was found that upon service on the counsel for the defendants, the petition under Order 21 Rule 58 of the Code of Civil procedure was actually before the court below in E. P. No. 167 of 2000. If that being the case, the factum of presentation of the said petition by the plaintiff and his son can be established by verification or summoning the records in E. P. No. 167of 2000, and in my considered view that is more effective method to be chosen by the 1 st defendant to substantiate his contention in the present suit, instead of summoning the counsel who represented the plaintiff in the earlier E. P. Proceedings. ( 14 ) EVEN assuming that no hardship or prejudice would be caused either to the plaintiff or to the counsel, who appeared on behalf of the plaintiff in the earlier E. P. Proceedings, it is difficult to discern as to what would and could be said by the said counsel after lapse of a considerable period. It is difficult for the counsel to say about the contents of the said petition under Order 21 rule 58 of the Code of Civil Procedure, which was allegedly filed by the plaintiff. At the most, he may be able to say that an application of that sort was filed but not the contents. Therefore, the only factor that remains is to prove the factum of the presentation of petition under Order 21 rule 58 of the Code of Civil Procedure in e. P. No. 167 of 2000. ( 15 ) AS already pointed out, the said aspect can be gone into by way of verification of the record in E. P. No. 167 of 2000. ( 16 ) I do not find any absolute necessity for the 1st defendant to file the present application praying the court below to summon the counsel to speak about the factum of the presentation of an application under Order 21 Rule 58 of the Code of Civil procedure in E. P. No. 167 of 2000, when it can be done by taking recourse to the other method i. e. , verification of record in e. P. No. 167 of 2000. ( 17 ) FOR the foregoing reasons, it is absolutely not necessary for the court below or for this court to go into the aspect of the scope and applicability of Sec. 126 of the indian Evidence Act and the decision (1 supra) relied upon by the learned counsel for the 1 st defendant is unexceptionable but not applicable to the present set of facts. ( 18 ) I do not find any illegality or irregularity in the order passed by the court below warranting interference by this court, not on the reasoning rendered by the court below but on the basis of the reasoning given by this court. ( 19 ) I do not find any merits in the present civil Revision Petition and hence the same is liable to be dismissed. ( 19 ) I do not find any merits in the present civil Revision Petition and hence the same is liable to be dismissed. ( 20 ) IN the result, the Civil Revision petition is dismissed, at the stage of admission. However, there shall be no order as to costs. ( 21 ) IT is needless to mention that it is always open for the 1st defendant to take recourse of the other method as indicated in the present order.