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2008 DIGILAW 406 (AP)

Balsa Sarada v. Talluri Anasuryamma (Died) per L. Rs.

2008-06-24

GOPALA KRISHNA TAMADA

body2008
ORDER As these revisions are interrelated they are disposed of by this common order. 2. Facts, in brief, are: Revision petitioner filed the suit in O.S.No.1 of 1995 on the file of the Court of the Principal Senior Civil Judge, Nellore, initially against her parents i.e. the defendants 1 and 2 and the subsequent purchasers as defendants 3 and 4, for a declaration that the suit schedule house was given to her by her parents at the time of marriage towards pasupu kunkuma and that the sale made by her father in favour of defendants 3 and 4 is null and void. As defendants 1 and 2 died during the pendency of the said suit, she brought the legal representatives i.e. her brother and sisters as defendant Nos.5 to 11. According to the petitioner-plaintiff her parents gave the suit house to her, at the time of marriage i.e. as early as in 1976 and the said house was let out to the husband of eleventh respondent and eleventh respondent with her husband is residing in the said house. It is also the case of the petitioner-plaintiff that the husband of eleventh respondent executed a lease deed in her favour and eleventh respondent and her husband are paying rents regularly and first defendant, the mother, was collecting the rents during her lifetime. As the said house was sold by first defendant in favour of defendants 3 and 4, revision petitioner was constrained to institute the suit in O.S.No.1 of 1995 with the aforesaid prayer. It was denied by respondents particularly, defendants 3 and 4 i.e. the subsequent purchasers. During the course of trial, revision petitioner-plaintiff exhibited Exs.A-17 to A-19, which are the lease deeds alleged to have been executed by the husband of eleventh respondent, but the trial Court though received them as evidence disbelieved the same, as the signature of the husband of eleventh respondent is not proved by any cogent evidence and accordingly the trial Court dismissed the said suit. Questioning the said judgment, revision petitioner preferred an appeal in A.S.No.20 of 2003 on the file of the Court of the IV Additional District Judge, Nellore. Questioning the said judgment, revision petitioner preferred an appeal in A.S.No.20 of 2003 on the file of the Court of the IV Additional District Judge, Nellore. In the said appeal, the revision petitioner filed three interlocutory applications, viz., I.A.Nos.579, 580 and 581 of 2005 stating that she came to know about the institution of a suit in O.S.No.55 of 1990 on the file of the Court of the Senior Civil Judge, Kovur by the husband of eleventh respondent against his brother for recovery of possession of the plaint schedule property therein, and hence a copy of the plaint therein, where the signatures of the husband of eleventh respondent is available, is to be summoned and received as additional evidence and also to send the said plaint copy to an expert for comparison of the said signatures with the signatures on Exs.A 17 to A 19. As the said applications were dismissed by the trial Court (sic. Appellate court) by different orders dated 28-11-2007 these revisions are preferred. 3. Heard Smt. W.V.S. Rajeswari, learned counsel for the revision petitioner and Smt. J. Kusumavathi, learned counsel for the respondent Nos.3 and 4. 4. It is mainly contended by learned counsel for the petitioner, Smt. W.V.S. Rajeswari, that the petitioner is not aware of the existence of such documents when the trial was conducted in her suit and it is only after dismissal of the suit on the ground that the signatures of the husband of eleventh respondent are not proved and the trial Court rejected Exs.A-17 to A 19, she came to know about the institution of the suit in O.S.No.55 of 1990 by the husband of eleventh respondent and thus it necessitated her to file the application under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 for production of additional evidence in the appellate Court. It is also contended that by summoning the said documents no prejudice is going to be caused to the respondents-defendants. 5. Per contra, learned counsel for the respondent Nos.3 and 4, Smt. J. Kusumavathi, opposed the said submissions stating that the petitioner was not diligent enough in getting the admitted signature of the husband of eleventh respondent marked or sent for examination by an expert and now asking for summoning of such a document, is nothing but to protract the litigation. Per contra, learned counsel for the respondent Nos.3 and 4, Smt. J. Kusumavathi, opposed the said submissions stating that the petitioner was not diligent enough in getting the admitted signature of the husband of eleventh respondent marked or sent for examination by an expert and now asking for summoning of such a document, is nothing but to protract the litigation. It is further contended by learned counsel that first defendant i.e. the mother of the petitioner is the absolute owner of the said house and she sold the said property to defendant Nos.3 and 4 i.e. respondent Nos.3 and 4 even prior to the institution of the suit and the trial Court has rightly dismissed the suit and as such the lower appellate Court rightly dismissed the said petitions as not maintainable in the appeal. 6. Order XLI, Rule 27 of CPC deals with the production of additional evidence in appellate stage and it permits evidence only in the following cases i.e. (1) when the plaintiff relies on a piece of evidence and requests the Court to accept the said evidence and the Court refuses to admit such evidence, (2) when the plaintiff establishes that despite his or her exercising due diligence such evidence was not available or within his or her knowledge and such evidence she or he has come to know of such evidence only after the dismissal of the suit and (3) when the appellate Court feels that any such evidence is required enabling it to come to just conclusion to pronounce the judgment. In my considered view, the plea taken by the petitioner does not fall in any of the grounds provided for under Order XLI, Rule 27 of CPC. Of course it is the contention of the learned counsel for the petitioner that it falls into the second category. In this context it may be necessary to refer clause (aa) of sub-rule (1) of Rule 27 of Order XLI, of CPC- "the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or" 7. When it is the case of the petitioner that her sister who is arrayed as eleventh respondent is her tenant and she is residing in the demised premises with her husband and the husband of eleventh respondent has executed the lease deed in favour of the petitioner, the petitioner should have tried to examine the husband of eleventh respondent. Hence, it is clear that the petitioner has not taken any steps to examine the husband of eleventh respondent. Of course it may be true that the husband of eleventh respondent even if summoned for the purpose of examination may not admit, but in such cases, she should have requested the Court to obtain the signature of the husband of eleventh respondent and send the same to an expert for comparison of the signatures with the signatures on Exs.A-17 to A-19, the petitioner has not chosen to do so. Further Section 154 of the Indian Evidence Act,1872 permits the petitioner to put any questions to him which might have been put in cross-examination by the adverse party and she also should have requested the Court to obtain the signatures and send them to an expert for comparison with the signatures on Exs.A-17 to A-19. 8. From the above it is clear that the petitioner is not diligent enough during the course of trial and hence she cannot say that despite her exercising due diligence she could not produce such evidence cannot be accepted and as stated supra such a plea does not fall under the said provisions of law. 9. For the above reasons, this Court has no hesitation to hold that the Court below is perfectly justified in dismissing the said applications and accordingly these revisions are dismissed. No costs.