Research › Search › Judgment

Telangana High Court · body

2022 DIGILAW 220 (TS)

Palle Yadagiri v. Palle Narsing Rao

2022-03-15

A.VENKATESHWARA REDDY

body2022
ORDER : 1. All the three Civil Revision Petitions are arising out of Original Suit No.445 of 2014 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad. Accordingly, it is proposed to dispose of all the three CRPs, through this common order. 2. a) CRP No.16 of 2021 is filed by the petitioner/plaintiff assailing the order dated 05.11.2020 in IA No.719 of 2020 in OS No.445 of 2014 filed under Order-VII, Rule 14 (3) read with Section 151 of the Civil Procedure Code, 1908 (for short ‘CPC’) for reception of documents. b) CRP No.18 of 2021 is filed by the plaintiff assailing the order dated 05.11.2020 in IA No.718 of 2020 in OS No.445 of 2014 filed under Order-18, Rule 17 r/w. Sec.151 of CPC for recall of PW.1. c) CRP No.19 of 2021 is filed by the plaintiff assailing the order dated 15.11.2020 in IA No.717 of 2020 in OS No.445 of 2014 filed u/s.151 of CPC to reopen the suit for the purpose of reception of documents, through PW.1. 3. All the above three Interlocutory Applications were dismissed by the Court below. Feeling aggrieved by the dismissal of above IA Nos.719, 718 and 717 of 2020, the plaintiff has filed these CRP Nos.16, 18 and 19 of 2021 respectively. 4. For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendant as arrayed in the original suit. 5. Heard the learned counsel on both sides. Detailed submissions have been made on both sides which are more or less on pleaded lines in above IAs and counters. Therefore, it may not be necessary to refer such submissions in detail. However, they are received due consideration of the Court. Perused the material available on record. 6. The plaintiff has filed the original suit for partition and separate possession against the sole defendant. After filing written statement on 01.09.2014, issues were settled. During trial, evidence on behalf of plaintiff and defendant was concluded and arguments were heard. At this belated stage, these applications came to be filed in IA No.719 of 2020 under Order-VII, Rule-14 (3) CPC for reception of documents, in IA No.718 of 2020 under Order-18, Rule-7 CPC for recall of PW.1 and in IA No.717 of 2020 u/s. 151 of CPC to reopen the suit. The trial Court, vide separate orders, dismissed all three applications. 7. The trial Court, vide separate orders, dismissed all three applications. 7. The main averments of the affidavits filed in support of these three applications in IA Nos.719, 718 and 719 of 2020 are that the defendant is the brother of plaintiff, born through another wife of his father. Earlier OS No.292 of 1993 was filed between the parties and copies of judgment and decree and plaintiff’s evidence in OS No.292 of 1993 on the file of IV Senior Civil Judge, City Civil Court, Hyderabad are very much essential to prove the case of plaintiff herein. Therefore, it is just and essential to receive these documents by recalling PW.1 by reopening the original suit, wherein the evidence on both sides is closed and the case is being posted for arguments. 8. The defendant has filed a common counter in all three IAs. The main averments of the counter are that the plaintiff has failed to convince the Court that for sufficient reasons as contemplated under Order-VII, Rule-14 (3) CPC, he could not file the said documents. In fact, these documents are well within the knowledge of the plaintiff and they are in his possession as on the date of filing of the suit and the plaintiff intentionally and deliberately failed to file these documents and has filed these applications at belated stage. In fact, having vexed with the attitude of the plaintiff, the trial Court has directed the parties to file written arguments. Accordingly, the defendant has filed his written arguments. After going through the written arguments of defendant, to overcome the defendant’s case, all these three IAs are filed. The defendant never accepted the plaintiff as his brother either in OS No.292 of 1993 or anywhere in the said suit, the said documents have no relevancy with the facts of the present case. There are no merits either to receive the said documents or to recall PW.1 at this belated stage by reopening the case for further evidence of plaintiff and prayed for dismissal of these applications. 9. The trial Court after due enquiry, dismissed all the three applications for reception of documents, for recall of PW.1 and to reopen the suit for further evidence of the plaintiff. Aggrieved by the same, the plaintiff filed these three CRPs. 10. 9. The trial Court after due enquiry, dismissed all the three applications for reception of documents, for recall of PW.1 and to reopen the suit for further evidence of the plaintiff. Aggrieved by the same, the plaintiff filed these three CRPs. 10. The learned counsel for the plaintiff vehemently contends that the proposed documents are crucial for the plaintiff to establish his case, mere non-mention of these documents either in the pleadings in the plaint or in the evidence on behalf of plaintiff or in the cross-examination of defendant is not fatal to the plaintiff’s case and it does not effect the powers of the Court under Order-VII, Rule-14 (3) of CPC to receive such documents at subsequent stage and relied on the principles relied by this Court in Bada Bodaiah and another v. Bada Lingaswamy and others, 2003 (1) ALD 790. 11. Per contra, the learned counsel for the defendant submits that the plaintiff is protracting the litigation to the possible extent and that the evidence on both sides was closed long back in June 2018. In fact, after closure of defendant’s evidence, the suit was adjourned for some time for Commissioner’s report. Thereafter, from December 2018 onwards the suit is being adjourned only for arguments, the trial Court having vexed with the attitude of the plaintiff directed the parties to file written arguments. The defendant has filed his written arguments by furnishing a copy to the plaintiff and it is only after perusal of the written arguments of the defendant, to overcome the defendant’s case and to fill up the lacunae in plaintiff’s case, all these three IAs are filed and they are not maintainable. Accordingly, the learned counsel for the defendant has relied on the principles laid in Gagai Construction, through its Proprietor Mr. Lalit Bagai v. Gupta Building Material Store, AIR 2013 SC 1849 12. I have given my thoughtful consideration to the decisions relied by the learned counsel for the plaintiff and defendant. 13. Reverting back to the facts of the present case, undisputedly, the original suit is filed for partition and separate possession of the suit schedule property, nowhere either in the pleadings or in the evidence on behalf of plaintiff or in the cross-examination of defendant’s witnesses, there is any reference as to filing of earlier suit OS No.292 of 1993 on the file of the IV Senior Civil Judge, Hyderabad. It is a fact that after closure of evidence on both sides, when the trial Court was insisting for advancing the arguments, these applications came to be filed. 14. On perusal of the averments made in the affidavits filed in support of three applications, the plaintiff remained silent as to why he could not file these documents along with the suit or at least when the evidence on behalf of plaintiff was in progress or when the evidence on behalf of defendant was in progress. 15. a) Order-VII, Rule-14 CPC deals with production of document on which plaintiff sues or relies. Sub-Rule (3) contemplates that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the time of hearing of the suit. b) Order-XVIII, Rule-17 of CPC deals with power of the Court to recall and examine witnesses. The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. c) Section 151 of CPC deals with inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court. 16. The Hon’ble Supreme Court in Gagai Construction’s case (supra) while dealing with the similar facts for reception of documents on behalf of plaintiff, recall of plaintiff’s witness and reopening of the suit for recording additional evidence at belated stage, after closure of the evidence when the suit was adjourned for arguments, held that the plaintiff cannot be permitted to file such applications to fill up lacunae in the pleadings and evidence led by him, such course is not permissible even with the aid of Section 151 CPC, accordingly, the impugned order of the High Court was set aside by restoring the order of trial Court. The Hon’ble Supreme Court further held that recording of evidence should be a continuous process and followed by arguments and the decision thereon within a reasonable time and the Court should constantly endeavour to follow time schedule. The Hon’ble Supreme Court further held that recording of evidence should be a continuous process and followed by arguments and the decision thereon within a reasonable time and the Court should constantly endeavour to follow time schedule. When the same is not followed by the parties, purpose of amending several provisions in CPC would get defeated and only in compelling circumstances and for acceptable reasons, such applications may be considered. 17. A perusal of the additional documents filed by the plaintiff sought to be marked, shows that they are the certified copy of judgment and decree in OS No.292 of 1993, certified copy of plaint, which are dated 05.12.1998 and 15.03.1993 respectively and another document letter issued by the Hyderabad Metropolitan Water Supply and Sewerage Board, which is dated 28.09.2012. All these documents relate to the period prior to the filing of the original suit. 18. A plain reading of the averments in the plaint would show that nowhere the plaintiff has referred to either filing of the original suit No.292 of 1993 or the letter dated 28.09.2012 issued by HMWSSB. OS No.292 of 1993 is filed by one Dr. Dinkar Bhole and two others against Palle Mankamma, Palle Vardhanamma and Palle Yadgiri (plaintiff herein), Palle Narsing Rao (defendant herein) and 8 others. That suit was filed for declaration of title and injunction, whereas the present original suit is filed for partition way back in the year 2014. The evidence on both sides is completed and for the last more than four years the suit is being adjourned only for arguments. Thus, during the course of trial the plaintiff is aware of these documents, but he did not make any effort to bring the same on record. 19. In such facts and circumstances, the trial Court has rightly observed that it is a belated application, that too after conclusion of the evidence on both sides, when the matter was adjourned for arguments and after the defendant has filed his written arguments, these three applications are filed, and the plaintiff cannot be permitted to file such applications to fill up lacunae in the pleadings and evidence led by him. Further, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not brought on record during the entire trial. 20. Further, there is no acceptable reason or cause which has been shown by the plaintiff as to why these documents were not brought on record during the entire trial. 20. Though in the case of Bada Bodaiah’s case (supra) this Court has held that mere non-mention of documents in the plaint or in the supplementary proceedings, does not effect the power of the Court to grant leave to produce the documents, in the circumstances of the case on hand, since evidence on behalf of both parties is closed and the suit is being adjourned for the last more than four years only for arguments and the defendant has submitted his written arguments, at this belated stage the plaintiff cannot be permitted to bring some other documents on to record for the first time without there being any reference to such documents either in the pleadings or in the evidence, that too when such documents were available to the plaintiff throughout the trial. 21. Therefore, this Court is of the considered opinion that the plaintiff has failed to establish sufficient reason for reception of the documents stated above, at this belated stage by recalling PW.1 and by reopening the suit for further evidence on behalf of the plaintiff. When the facts of the present case are tested on the touch stone of the principles laid by the Hon’ble Supreme Court in the case of Gagai Construction’s case (supra), the answer is in negative and the plaintiff is not entitled, either for reception of documents or for recall of PW.1 or for reopening of the suit for that purpose. 22. In the result, these Civil Revision Petition Nos.16, 18 and 19 of 2021 are dismissed with costs, confirming the orders passed in IA Nos.719, 718 and 717 of 2020 in OS No.445 of 2014 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad. Considering the facts and circumstances of the case and conduct of the plaintiff, the trial Court is hereby directed to proceed with the hearing of arguments by giving one more opportunity to the plaintiff to advance his arguments in the original suit and shall make endeavour to dispose of the original suit, within three months from the date of receipt of a copy of this order. As a sequel, interlocutory applications, if any pending, shall stand closed.