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2021 DIGILAW 10 (TS)

K. Sona Bai v. M. Ananda Bai

2021-01-05

M.S.RAMACHANDRA RAO

body2021
ORDER : M.S. Ramachandra Rao, J. 1. These three Revisions arise between the same parties out of the same suit, and so they are being disposed of by this Common Order. 2. The petitioner in all the Revisions is 2nd defendant in O.S. No. 349 of 2009. 3. The said suit was filed by Late Smt. M. Ananda Bai for partition of a house property bearing H. No. 4-1-55, consisting of Ground, First and Second Floors situate at Old Bhoiguda, Secunderabad. 4. She contended that she had 50% equal joint right over the suit schedule property and that one K. Sona Bai, who is her mother, had the other 50% right over the property as legal heir of Late K. Girmaji Rao; and that Smt. K. Sona Bai allegedly executed a Gift Settlement Deed on 17.05.2006 in favour of petitioner probably under coercion, though she did not have exclusive right over the suit schedule property. 5. The petitioner herein is represented by her next friend and guardian, who is her father, in the above suit. 6. During pendency of suit, plaintiff died and respondent nos. 2 and 3 were brought on record as her legal representatives. 7. After evidence on plaintiff's side was closed, the matter was posted for evidence of petitioner/defendant. 8. However, though opportunity to adduce evidence was given on 07.02.2018, 21.02.2018, 19.03.2018, 28.03.2018 and 06.04.2018 on payment of costs of Rs. 100/-, neither petitioner nor her counsel were present, and so, their evidence was closed, and the matter was posted for arguments. 9. Petitioner then filed I.A. No. 80 of 2018 to re-open the matter and to re-call D.W. 1. 10. The said I.A. was allowed on 27.06.2018 on payment of costs of Rs. 400/- subject to condition that petitioner would adduce evidence and file Chief-examination Affidavits of intending defendant's witnesses on 28.08.2018. 11. The petitioner however failed to file such chief-examination affidavits before the Court below. Therefore, the Court closed the evidence of petitioner and posted the matter for arguments again. 12. At that stage, petitioner filed I.A. No. 270 of 2018 to set aside the order dt. 11. The petitioner however failed to file such chief-examination affidavits before the Court below. Therefore, the Court closed the evidence of petitioner and posted the matter for arguments again. 12. At that stage, petitioner filed I.A. No. 270 of 2018 to set aside the order dt. 26.07.2018 contending that the father and natural guardian of petitioner was a Government employee and due to official work he could not come and attend the Court for giving evidence or could pay costs in spite of being informed by his counsel to be present in Court; that his absence on 28.07.2018 was not willful or deliberate, and so, the order dt. 28.07.2018 be set aside, and the suit be re-opened and DW. 1 be recalled for giving evidence. 13. By separate orders, the Court below dismissed these three applications. 14. The Court below held that the suit had been filed in the year 2009 and in spite of being given several opportunities to lead evidence, the petitioner had not availed of the same; that there was no documentary evidence placed before the Court that the guardian of petitioner was on official duty because of which he could not file evidence affidavits; and therefore, the applications are deserved to be dismissed. 15. Assailing the same, the present Revisions are filed. 16. The counsel for petitioner contended that the father of petitioner is a Government employee and was on urgent official work on 28.07.2018 and so he could not attend the work despite intimation by his Counsel and lead evidence; that as per conditional order dt. 26.07.2018 passed by the Court below, the evidence on the side of petitioner had been closed on 28.08.2018; that petitioner had not deliberately failed to avail opportunity granted by the Court, but on account of unavoidable circumstances and important duties, the guardian of petitioner could not attend the Court to given evidence; that the past conduct of petitioner could not have been taken as the ground for dismissal of the applications filed to set aside the order closing petitioner's evidence on a particular date and only the reason assigned for the absence of the party on the particular date has to be considered; that though the applications had been filed immediately on 30.08.2018, the lower Court kept them pending for thirteen (13) months and passed the impugned orders on 18.03.2020. 17. 17. The counsel for respondent(s) supported the order passed by the trial court. 18. As can be seen from the facts narrated above, the suit had been filed in the year 2009 for partition, and the evidence on the side of plaintiff had been closed. The petitioner had been given opportunities to adduce evidence on 07.02.2018, 21.02.2018, 18.03.2018, 28.03.2018 and 06.04.2018 on payment of costs of Rs. 100/-, but petitioner did not pay the same; and so, the evidence on the side of petitioner was closed. 19. The petitioner filed I.A. No. 80 of 2018 to re-open the matter and to re-call DW. 1 which was allowed on 26.07.2018 on payment of costs of Rs. 400/- each with condition to adduce evidence by filing chief-examination affidavits on 20.08.2018; and in default, the evidence of petitioner would be closed. 20. All that was required of petitioner's guardian to do was to file chief-examination affidavits of the evidencing witnesses on 20.08.2018 through the counsel engaged by petitioner. For the said purpose, the presence of witnesses as well as the natural guardian of petitioner was also not technically necessary. 21. That apart, even if petitioner's natural guardian was a Government employee, i.e., the Greater Hyderabad Municipal Corporation's employee, he could have applied leave and attended the Court by availing opportunity offered to petitioner to lead evidence. 22. At least, he could have arranged to have paid costs of Rs. 400/- to respondents. But, even this had not been done. 23. It appears that petitioner's guardian was not interested in leading evidence in spite of the several opportunities given by the Court below not only prior to 20.07.2018, but even after 20.07.2018. Therefore, the Court below cannot be blamed for not allowing I.A. Nos. 269, 270 and 271 of 2018. 24. I therefore do not find any error of jurisdiction in the order passed by the Court below warranting interference by this Court in exercise of power under Article 227 of the Constitution of India. 25. Accordingly, the Civil Revision Petitions fail and are dismissed. No order as to costs. 26. As a sequel, miscellaneous petitions pending if any in these Writ Petitions, shall stand closed.