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2011 DIGILAW 549 (AP)

Kusetty Seshamma v. Chemicala Rama Mohan Reddy

2011-07-19

B.SESHASAYANA REDDY

body2011
ORDER B. Seshasayana Reddy, J. 1. This revision is directed against the order dated 4.2.2011 passed in IA No. 49 of 2011 in OS No. 184 of 2008 on the file of the Principal Junior Civil Judge, Proddatur, whereby and whereunder the learned Junior Civil Judge dismissed the application filed by the Petitioner to summon the Doctor who issued Ex. B1 certificate under Order 16 Rules 1 and 6 Code of Civil Procedure. 2. Heard learned Counsel appearing for the Petitioner and learned Counsel appearing for the Respondents. 3. Learned Counsel appearing for the Petitioner submits that Ex. B1 is the certificate issued by the Doctor to show that Subramanyam, who is the son of K. Seshamma, who is one of the Defendants in the suit, is mentally unsound and unless the author of Ex. B1-certificate is examined, the contents therein cannot be placed reliance. A further submission has been made that there is no absolute bar of examining the witnesses whose names do not figure in the list of witnesses submitted to the Court, after framing of the issues. It is also submitted by him that filing of the list of witnesses within 15 days of the framing of the issues is not mandatory. In support of his submission, reliance has been placed on the decision of this Court in Addagatla Narender v. Some Vijayalakshmi 2006 (3) ALD 94 : 2006 (3) ALT 422. 4. Learned Counsel appearing for the Respondents submits that the trial Court considered the material brought on record in right perspective and rejected the application filed by the Petitioner to summon die author of Ex.B1-certifciate and therefore, the revision is liable to be dismissed. The learned Counsel placed reliance on the decision of this Court in Naseema and Ors. v. B. Naageswara Reddy and Ors. 2008 (2) ALT 577 : 2008 (6) ALD (NOC) 101, in support of his submission. 5. The 1st Respondent herein is the Plaintiff. He filed the suit for injunction basing on the sale deed said to be executed by Subramanyam, who is the son of Seshamma (1st Petitioner herein). It is the contention of the Petitioner that Subramanyam is mentally unsound and therefore, any sale deed allegedly executed by Subramanyam is a nullity. The Petitioner placed on record the certificate issued by the Doctor to show the mental ailment of Subramanyam. The said certificate has been marked as Ex.B1. It is the contention of the Petitioner that Subramanyam is mentally unsound and therefore, any sale deed allegedly executed by Subramanyam is a nullity. The Petitioner placed on record the certificate issued by the Doctor to show the mental ailment of Subramanyam. The said certificate has been marked as Ex.B1. There seems to be no objection when Ex.B1 has been exhibited. Once Ex.B1 is exhibited, the contents therein are required to be proved by examining its author. As held by this Court in the above referred decision that filing of the list of witnesses within 15 days of framing of the issues is not mandatory and liberal approach be adopted in permitting admissible evidence despite procedural technicalities, so that the very justice delivering system would not suffer in its working to the detriment of litigant public. 6. Indisputably, the Respondents did not raise any objection when Ex. B1-certificate has been marked. The Petitioner has specifically pleaded in the written statement that Subramanyam is mentally ill and he is incapable of executing any document. Such is the plea advanced by the Petitioner, the examination of the author of Ex.B1 certificate has become imminent. The trial Court has not correctly appreciated the purpose for which the author of Ex. B1 is required to be examined as a witness and thereby committed an error in dismissing the application. 7. Accordingly, the civil revision petition is allowed setting aside the order dated 4.2.2011 and consequently IA No. 49 of 2011 stands allowed. Any observation made with regard to the contents of Ex.B1 is only for the limited purpose of the disposal of this civil revision petition. No order as to costs.