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2020 DIGILAW 828 (AP)

Gogineni Srinivasa Rao v. Gogineni Jogaiah

2020-12-17

M.SATYANARAYANA MURTHY

body2020
ORDER : M. Satyanarayana Murthy, J. 1. This civil revision petition is filed assailing the order in I.A. No. 364 of 2014 in O.S. No. 220 of 2013 dated 21.08.2014 passed by the Senior Civil Judge, Nandigama, Krishna District. 2. The petitioners filed civil revision petition to reopen the evidence of the plaintiffs and to recall P.W.-1 under Order XVIII Rule 17 of C.P.C. for marking documents. The petitioners are the plaintiffs, whereas, respondents were the defendants in O.S. No. 220 of 2013. 3. The suit was filed for partition of suit schedule property into three equal shares and for allotment of two such shares to the plaintiffs by metes and bounds and for separate possession. The petitioners filed I.A. No. 364 of 2014 on the ground that the defendants took a plea in their written statement that the mother of the petitioners is not the legally wedded wife of the first defendant and the petitioners are illegitimate children of the first defendant and they obtained certified copy of sale deed dated 16.03.1981 executed by P.W.-5 in favour of third defendant in respect of the land covered under Ex. A-8 and voters list in respect of Gottumukkala village. As the evidence of these petitioners and respondents was completed, the suit was posted for arguments, the petitioners secured certified copies of those documents and filed separate petition for recall of P.W.-1 and to receive the documents. 4. While, Respondent Nos. 1 to 3 reported no counter in I.A. No. 364 of 2014; Respondent No. 4 filed counter affidavit denying material allegations, inter alia contending that the petition was belated and it was filed to drag on the suit proceedings and requested to dismiss I.A. No. 364 of 2014. 5. The Trial Court dismissed I.A. No. 364 of 2014 on 21.08.2014 on the ground of delay in filing the documents. 5. The Trial Court dismissed I.A. No. 364 of 2014 on 21.08.2014 on the ground of delay in filing the documents. Aggrieved by the said order, the present civil revision petition is filed under Article 227 of the Constitution of India, mainly contending that the documents filed along with I.A. No. 364 of 2014 are important documents to substantiate the claim of the petitioners, more particularly, to prove that they are legitimate children of the first defendant and that, in the absence of those documents, it is difficult to prove the relationship between the petitioners and first defendant and only to disprove the contention of the first defendant, the petitions is filed to reopen the evidence of the plaintiffs and to recall P.W.-1 for marking documents. It is contended that the Trial Court dismissed I.A. No. 364 of 2014 only on the ground of delay only without considering the surrounding circumstances and committed an error in dismissing I.A. No. 364 of 2014. 6. During hearing, learned counsel for the petitioners submitted that, as there is delay is filing documents and reopen petition can be filed at any stage before hearing the arguments of the petitioners counsel appearing in the matter. Hence, there is no embargo to reopen the evidence of these petitioners/plaintiffs and requested to issue a direction to the Trial Court to reopen the evidence of the petitioners/plaintiffs and pass consequential orders. 7. Indisputably, the evidence of both the petitioners and respondents herein i.e. plaintiffs and defendants was closed by the date of filing of I.A. No. 364 of 2014. In fact, a written statement was also filed on 05.11.2013 questioning the legitimacy of the petitioners. The suit was posted for trial on 04.04.2014. On 04.04.2014 witnesses were not produced and posted to 15.04.2014, and again reposted to 04.06.2014. On 04.06.2014 petitioners filed I.A. No. 198 of 2014 to receive the documents and it was allowed. The petitioners also filed memo along with documents on 19.06.2014 with G.L. Nos. 2243 and 2245 and they were allowed and plaintiffs' evidence was closed. After closure of plaintiffs evidence, defendants adduced their evidence and the suit was posted for arguments to 30.07.2014. Thus, though there was reasonable time enabling these petitioners to file appropriate applications before posting the suit for arguments, they did not choose to file any application(s). 2243 and 2245 and they were allowed and plaintiffs' evidence was closed. After closure of plaintiffs evidence, defendants adduced their evidence and the suit was posted for arguments to 30.07.2014. Thus, though there was reasonable time enabling these petitioners to file appropriate applications before posting the suit for arguments, they did not choose to file any application(s). Therefore, there is delay in filing petition to reopen the evidence of the plaintiffs and to recall P.W.-1 for marking documents. 8. No doubt, when once the arguments were heard and the matter is posted for judgment, the Court cannot reopen the matter on any ground. 9. In Arjun Singh v. Mohindra Kumar and others : AIR 1964 SC 993 , the Apex Court in the said judgment, held that, so far as the case before us is concerned the order under appeal cannot be sustained even on the basis that the finding recorded in disposing of an application under O. IX, r. 7 would operate as res judicata when the same question of fact is raised in a subsequent application to set aside an ex parte decree under O. IX, r. 13. This is because it is not disputed that in order to operate as res judicata, the court dealing with the first matter must have had jurisdiction and competency to entertain and decide the issue. Adverting to the facts of the present appeal, this would primarily turn upon the proper construction of the terms of O. IX, r. 7. The opening words of that rule are, as already seen, 'Where the Court has adjourned the hearing of the suit ex parte'. Now, what do these words mean? Obviously they assume that there is to be "a hearing" on the date to which the suit stands adjourned. If the entirety of the "hearing" of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly no adjournment of "the hearing" of the suit, for there is nothing more to be heard in the suit. If the entirety of the "hearing" of a suit has been completed and the Court being competent to pronounce judgment then and there, adjourns the suit merely for the purpose of pronouncing judgment under O. XX, r. 1, there is clearly no adjournment of "the hearing" of the suit, for there is nothing more to be heard in the suit. It was precisely this idea that was expressed by the learned Civil Judge when he stated that having regard to the stage which the suit had reached the only proceeding in which the appellant could participate was to bear the judgment pronounced and that on the terms of rules 6 & 7 he would permit him to do that. If, therefore, the hearing was completed and the suit was not "adjourned for hearing", O. IX, r. 7 could have no application and the matter would stand at the stage of O. IX, r. 6 to be followed up by the passing of an ex parte decree making r. 13 the only provision in order IX applicable. If this were the correct position, it would automatically follow that the learned Civil Judge would have no jurisdiction to entertain the application dated May 31, 1958 purporting to be under O. IX, r. 7, or pass any order thereon on the merits. This in its turn would lead to the result that the application under O. IX, r. 13 was not only competent but had to be heard on the merits without reference to the findings contained in the previous order. 10. Thus, when once the suit is reserved for judgment, question of reopen does not arise and it is for the Judge to decide the matter, in view of the law declared in Arjun Singh v. Mohindra Kumar and others (referred supra). Once the Court completed hearing of the matter and reserved the matter for judgment, any party is not entitled to file a petition to reopen. 11. In view of the judgment of the Apex Court referred above, when the arguments of the parties was heard and matter was reserved for judgment, the Court cannot reopen the matter, as there is nothing to be done by the parties, except pronouncement of judgment by the Presiding Officer of the Court. 11. In view of the judgment of the Apex Court referred above, when the arguments of the parties was heard and matter was reserved for judgment, the Court cannot reopen the matter, as there is nothing to be done by the parties, except pronouncement of judgment by the Presiding Officer of the Court. In view of the law declared by the Apex Court, a petition can be filed at any stage of the proceedings, before reserving the judgment, to reopen the matter. 12. But, the Trial Court relied on the judgment of the learned single Judge of High Court of Andhra Pradesh in Boddu Jalaiah v. Boddu Panduranga Rao : 2001 (4) ALT 471 wherein the Court held that; "as the petitioner failed to take necessary steps at appropriate time, is not entitled to file such application at fag end of the case-Order of trial Court justified". 13. The Trial Court also relied on another judgment of High Court of Andhra Pradesh in Dr. Syed Afzal v. Syed Hamia and others : 2002 (2) Law Summary 330, wherein the Court held that rebuttal evidence cannot be permitted at a belated stage when case is posted for arguments. 14. So far as Boddu Jalaiah v. Boddu Panduranga Rao (referred supra) is concerned, when the petitioners failed to take necessary steps at appropriate time, they are not entitled to file applications at the fag end of the case and the High Court upheld the order passed by the Trial Court. But, in view of the law declared by the Apex Court, at any stage before reserving the suit for judgment, a petition can be filed to reopen subject to justification. There is no straight jacket formula to deny such relief on the mere ground of delay. Therefore, by applying the law laid down by the Apex Court, it is difficult to accept the contention of the respondents and the law referred by the Trial Court. The other judgment i.e. Dr. Syed Afzal v. Syed Hamia and others (referred supra) pertains to receiving rebuttal evidence. But, here, it is not the case of rebuttal evidence. Therefore, the principle laid down therein is not applicable. 15. Coming to the facts of the present case, suit is filed for partition of schedule property and for allotment of shares to the petitioners. Syed Afzal v. Syed Hamia and others (referred supra) pertains to receiving rebuttal evidence. But, here, it is not the case of rebuttal evidence. Therefore, the principle laid down therein is not applicable. 15. Coming to the facts of the present case, suit is filed for partition of schedule property and for allotment of shares to the petitioners. But, the first defendant raised specific plea that they are disentitled to claim relief of partition, as they are not legitimate children, as the mother of these petitioners was not legally wedded wife of the first respondent. It is a difficult task to prove the legitimacy of the children in normal course of event. It involves family prestige also. However, the petitioners secured certified copy of certain documents to substantiate their contentions. Even, if for any reason, those documents are received by reopening of evidence of these petitioners, no prejudice would be caused to any of the parties and that too, the respondents did not raise any contention in their counter affidavit, except Respondent No. 4 raising a contention that it is belated one. Therefore, delay itself is not a ground to reopen the evidence, in view of the law declared by the Apex Court in the judgment referred supra. Hence, dismissal of the I.A. No. 364 of 2014 on the ground of delay is unsustainable and consequently, the order is liable to be set-aside. 16. In the result, civil revision petition is allowed, setting aside the order in I.A. No. 364 of 2014 in O.S. No. 220 of 2013 dated 21.08.2014 passed by the Senior Civil Judge, Nandigama, Krishna District. 17. Consequently, miscellaneous applications pending if any, shall also stand dismissed. No costs.