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2022 DIGILAW 1147 (AP)

Kadali Umadevi v. Muppuluru Madhava Rao

2022-10-28

V.R.K.KRUPA SAGAR

body2022
ORDER : Plaintiffs before the trial Court filed this civil revision petition under Article 227 of the Constitution of India challenging the correctness of order dated 11.12.2017 of learned Principal Junior Civil Judge, Gannavaram in I.A.No.525 of 2017 in O.S.No.160 of 2007. The respondents herein are the defendants before the learned trial Court. 2. An application praying the Court to receive the documents was declined by the learned trial Court necessitating this revision for plaintiffs. O.S.No.160 of 2007 is a suit filed by two plaintiffs as against nine defendants. The property in dispute is described as 30 links of wide road running from east to west, which separates the property of plaintiffs from that of the defendants. The suit is filed for declaration, mandatory injunction and consequential permanent injunction. The substance of the claim is that Plot Nos.88 and 89 totally admeasuring 763 square yards in Revenue Survey Nos.6/5 and 6/6 of Buddhavaram Village of Gannavaram Mandal, Krishna District is owned and possessed under certain registered sale deeds by the plaintiffs. It is stated that on east and south there are plots claimed to have been owned by defendant No.1 and defendant Nos.2 to 4. For the plots of the plaintiffs, the access is on southern side. Since the plaintiffs are absentee landlords, the defendants encroached 30 links road and commenced construction of concrete basement and as a consequence, the free access to the property of the plaintiffs is obstructed. It is in those circumstances, the suit was laid. During the pendency of the suit, evidence commenced on plaintiffs’ side and it was at that juncture, the plaintiffs filed I.A.No.525 of 2017 in O.S.No.160 of 2007 under Order VII Rule 14 read with Section 151 C.P.C. to permit them to file a document namely residential house sanction proceedings and the plan granted for construction issued by 5th defendant-Gram Panchayat and those proceedings pertain to the year 2010. In support of that application, the husband of 2nd plaintiff swore an affidavit and stated that during the course of cross-examination, the defendants suggested that the suit schedule property does not exist at all and it is not there in the Panchayat records. Saying so, the affidavit narrates that it was in that context the need for filing this application to produce evidence that in Plot Nos.88 and 89, Panchayat granted permission for construction. Saying so, the affidavit narrates that it was in that context the need for filing this application to produce evidence that in Plot Nos.88 and 89, Panchayat granted permission for construction. By then Exs.A.1 to A.17 were marked and the petitioners intended to have this proposed document exhibited as Ex.A.18. The affidavit further narrates about appointment of an advocate commissioner and as to how it was executed in part and was not executed further and the alleged causes of failure in completion of advocate commissioner’s work etc. With such averments, plaintiffs sought permission to file the document and prayed to mark it as Ex.A.18. 3. Respondent No.1 filed a counter. Respondent Nos.2 to 4 and 7 to 9 filed one common counter. Respondent No.6 filed another counter. Material contents of all these counters are same. In their counters, those respondents stated that the proposed document is not true and correct and such documents were not brought to the light till today and the proposed document does not disclose the existence of 30 links road on ground and it does not show about the alleged rights of the petitioners over the said road. The proposed proceedings dated 30.03.2010 contains a specific condition that the intended building was permitted to be constructed and completed within 36 months from the date of those proceedings and since that was not done, those proceedings have no legal sanctity and such document cannot be treated as evidence. It is then stated that only plaintiffs are entitled for filing a petition for documents and the petitioners is not competent to file the petition and the sworn affidavit does not indicate that the proposed document is in the custody of the petitioners. The husband of the 2nd petitioner/2nd plaintiff, being a third party to the suit, is not entitled to file the present petition. For these reasons, they sought for dismissal of the petition. 4. After hearing on both sides and on considering the material on record, the learned trial Court dismissed the petition. The following are the reasons assigned by the learned trial Court for reaching to such conclusion: It stated that the person, who filed the petition by swearing an affidavit, had filed his examination in chief by way of affidavit as PW.2 in the suit and he is not a party to the suit and he filed this petition. The following are the reasons assigned by the learned trial Court for reaching to such conclusion: It stated that the person, who filed the petition by swearing an affidavit, had filed his examination in chief by way of affidavit as PW.2 in the suit and he is not a party to the suit and he filed this petition. He is neither the plaintiff nor the G.P.A. holder for the plaintiffs and he has no authorization to file such petition. He being a third party, by himself cannot invoke Order VII Rule 14 C.P.C. It also stated that no foundation is there in the plaint about the existence of the proposed document and thus, the mandate under Order VII Rule 14 C.P.C. is not complied with. It then stated that it fully perused the proposed document and found that it was a permission granted by the Panchayat to the plaintiffs to construct house and it approved the plan appended to that proceedings and that document does not show the existence of the suit disputed 30 links road. Therefore, the said document could only show that the plaintiffs were granted permission to construct house but such document is not at all useful to show the existence of disputed road. On these principal reasons, it chose to dismiss the petition. 5. Aggrieved of it, the plaintiffs have come up with this revision stating that learned trial Court failed to consider the date of suit, which was of the year 2007 and the date of proposed document, which was of the year 2010 and went wrong in holding that there was no foundation in the plaint concerning this document. Since it is a subsequent document, it could not have been mentioned in the plaint. The trial Court ought to have seen that PW.2 is husband of 2nd plaintiff and he cannot be called as a third party and he is capable of deposing on behalf of his wife and he has been protecting the interest on the property. It is then stated that the trial Court ought to have seen that the proposed document was misplaced and only because of that, it could not be produced earlier. Reception of this document would not cause prejudice to anyone. The evidentiary value of this document could be gone into at the trial but not by the impugned order. It is then stated that the trial Court ought to have seen that the proposed document was misplaced and only because of that, it could not be produced earlier. Reception of this document would not cause prejudice to anyone. The evidentiary value of this document could be gone into at the trial but not by the impugned order. Even before receiving the document, the trial Court even decided the necessity of the document, which is incorrect. As it led to miscarriage of justice, they seek rectification of it by this revision. 6. As against this, learned counsel for respondents submits that the order of the trial Court is in accordance with law and each and every reason it assigned is correct and the revision is devoid of merits and sought for dismissal of it. 7. On hearing both sides and on considering their submissions and the material on record, the following point falls for consideration : “Whether the learned trial Court acted against law leading to miscarriage of justice requiring interference?” 8. Point : The following are undisputed facts : The two plaintiffs are women and on their behalf, Sri K.Ramakrishna holding General Power of Attorney filed the suit. Neither the plaintiffs nor the G.P.A. holder filed the affidavit in support of I.A.No.525 of 2017. The husband of 2nd plaintiff, who is Sri T.Krishna Murthy, filed an affidavit in support of the said application. Thus, the person, who swore the affidavit, is not a party to the suit. He filed his evidence affidavit as PW.2. These facts are not in dispute. On these facts, learned trial Court took the view that Sri T.Krishna Murthy, being a third party to the suit, was not entitled to file an application under Order VII Rule 14 C.P.C. and dismissed the petition. 9. In the view of this Court, the reasoning of the learned trial Court cannot be sustained. Civil Rules of Practice and Circular Orders, 1980 (for short, ‘the Rules’) do not postulate anywhere that the facts shall be verified invariably by the person, who made the application. Order XIX Rule 1 C.P.C. indicates that the affidavit of any witness may be read at the hearing. As per Rule 37 of the Rules, the affidavit shall be titled as in the suit. Order XIX Rule 1 C.P.C. indicates that the affidavit of any witness may be read at the hearing. As per Rule 37 of the Rules, the affidavit shall be titled as in the suit. The fact is that there has been practice in the Courts that certain affidavits in interlocutory applications are filed by the advocates and in some instances by the advocate clerks. At any rate, any person, who has knowledge of the facts stated in the affidavit, is competent to swear an affidavit and file it in support of an application. The application shall be signed either by the party or by the advocate representing the party. A perusal of I.A.No.525 of 2017 shows that the cause title for the petition and the affidavit filed in support of it are similar to the cause title in the suit. The petition is signed by the learned advocate, who is representing the plaintiffs in the suit. The deponent of the affidavit signed on the affidavit. Thus, the rules concerning the form of affidavit are complied with. Anyone who has knowledge of the facts is entitled to swear an affidavit. In this case, husband of 2nd plaintiff swore the affidavit. In terms of Section 120 of the Indian Evidence Act in all civil proceedings, the husband or wife of a party to the suit is a competent witness. In these circumstances, Sri T.Krishna Murthy giving affidavit in support of I.A.No.525 of 2017 cannot be found fault with as it is in accordance with law. Therefore, that part of the impugned order, which held that it was an incorrect application because the affidavit of a third party is filed, is held incorrect and is thus set aside. 10. The impugned order indicates that the application failed to mention as to why this document was not filed along with the plaint as required under Order VII Rule 14(2) C.P.C. It further failed to mention as to in whose possession the document was. A perusal of the affidavit filed in support of the petition indicates that the above observations of the learned trial Court are accurate. However, in the revision, criticism is raised attributing failure on part of the trial Court to understand that the document came into existence in 2010 and the suit was filed in 2007 and therefore, the plaint could not have mentioned about this document. However, in the revision, criticism is raised attributing failure on part of the trial Court to understand that the document came into existence in 2010 and the suit was filed in 2007 and therefore, the plaint could not have mentioned about this document. This contention does not contain a fair admission of failure to make a mention in the affidavit as to what is relevant and it expects that all the failures of a party should be ignored by a trial Court. One cannot dispute the observation of the trial Court when it stated the law that every document must be listed and filed along with the plaint and if at a later point of time the party intends to produce a document, the affidavit must indicate why it could not be filed earlier and what was the cause of delay and seek the leave of the Court. All that is missing in the affidavit filed in support of the interlocutory application. It is true that the document came into existence in the year 2010 and the suit was filed in the year 2007 and therefore in the list of documents appended to the plaint such a document could not be mentioned. Then at least that much was to be stated in the petition. Therefore, the petition filed does not really satisfy the legal requirement. The observation of the trial Court as to who has been holding possession of that document is also not referred in the affidavit is also seen to be correct. Therefore, that part of the order of the trial Court is correct and is upheld. 11. The reason for production of proposed document is that the existence of 30 links road, which is in dispute, was questioned by the defendants while cross-examining the plaintiffs’ witnesses. With a view to show that there is such a road in existence, the plaintiffs wanted to have the proposed document. Thus, they explained the need for proposed document. It is always within the power of the Court to verify that document and see whether purpose for which it was sought to be filed would be served by receiving such document. Precisely that was done by the trial Court when it said that on verification of the document, it found nothing with reference to the disputed 30 links road and therefore, it held that reception of that document was not needed. Precisely that was done by the trial Court when it said that on verification of the document, it found nothing with reference to the disputed 30 links road and therefore, it held that reception of that document was not needed. The criticism in this revision is that the utility of such evidence should not be decided while considering the application for leave to receive the document. This contention of the revision petitioners is incorrect for two reasons. The first reason is that the plaintiffs in their application before the trial Court also sought permission to mark this proposed document as Ex.A.18. When such prayer was made, it was certainly within the realm of the trial Court to consider the relevancy of such document. The second reason is with reference to seeking leave of the Court. As said earlier, there is absolutely no reference in the affidavit as to in whose custody this document was and why that was not filed earlier and why a document of the year 2010 was sought to be produced only in the year 2017 etc. In this revision, it is mentioned that it was misplaced and traced. But that is not mentioned in the affidavit. Therefore, nothing that was relevant for granting leave was placed before the learned trial Court. Be it noted, that parties to the litigation have not been pursuing the case on their own, but they have been assisted by able learned counsels. On a small endeavour of seeking leave to produce a document, when there were too many failures on part of the plaintiffs, the order of the trial Court in refusing to grant permission cannot be held as unreasonable or incorrect or against law. The document that does not indicate the existence of the disputed property when refused to be received by the Court one could not say that it caused injustice to plaintiffs. It is for these reasons, the final conclusions supported by reasons afforded by the trial Court in its impugned order are found correct. There are no merits in this revision. 12. In the result, this Civil Revision Petition is dismissed confirming the order dated 11.12.2017 of learned Principal Junior Civil Judge, Gannavaram in I.A.No.525 of 2017 in O.S.No.160 of 2007. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.