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2022 DIGILAW 378 (AP)

Daakarapu Venkata Subba Rao v. Kunda Aruna

2022-04-06

NINALA JAYASURYA

body2022
JUDGMENT Ninala Jayasurya, J. - The present Civil Revision Petition is preferred against the Order dated 17.12.2021 passed in I.a.No.423 of 2021 in O.S.No.171 of 2015 on the file of the Court of I additional District Judge, Nellore, Nellore District. 2. Heard Mr.Ravindra, learned counsel for the petitioner and the learned counsel for the respondents. 3. The petitioner herein is the plaintiff in the above referred suit filed against the respondents seeking specific performance of an agreement of sale. after examination of P.Ws 1 and 2 the evidence on plaintiff's side was closed and matter was posted for evidence on defendant's side. at that stage, the petitioner filed an application in I.a.No.423 of 2021 seeking to reopen the evidence on plaintiff's side and the said application was dismissed by Order dated 17.12.2021. aggrieved by the said Order, the present Civil Revision Petition is filed. 4. Learned counsel for the petitioner inter alia contends that the Order under Revision suffers from material irregularities. He submits that on behalf of the petitioner, P.Ws 1 and 2 were examined and P.W.3 who is attestor of Ex.a.1 agreement of Sale dated 06.02.2015 could not be examined due to pandemic and as P.W.3 underwent Cardiac Surgery. He submits that as the evidence on plaintiff's side was closed and matter was posted for defendants' side evidence on 26.11.2021, the petitioner on the same day filed an application in I.a.No.423/2021 to reopen the evidence on his side along with chief affidavit of P.W.3. He submits that no counter affidavit was filed by the respondents/defendants to the said application. He submits that overlooking the said aspect of filing the chief affidavit of P.W.3 vide C.F.No.1355/2021 dated 26.11.2021, the learned Trial Judge dismissed the I.a filed by the petitioner on a mistaken impression that the petitioner had not filed chief affidavit of P.W.3 along with the I.a. While drawing attention of this Court to the affidavit filed in lieu of chief examination of P.W.3 filed on 26.11.2021 vide C.F.No.1355/2021, the learned counsel states that the petitioner has no intention to drag on the proceedings as observed by the Trial Court and the very fact that the application to open the evidence on plaintiff's side was filed on 26.11.2021 when the matter is posted for defendants' side evidence would show the bonafides on the part of the petitioner. 5. 5. The learned counsel for the petitioner submits that the examination of P.W.3, who is the attestor of Ex.a.1 is essential to prove the execution of the agreement of Sale and the learned Trial Court ought to have given an opportunity to the petitioner to examine the witness, instead of dismissing the application to reopen the evidence. He further submits that no prejudice would be caused to the respondents/defendants as they would have an opportunity to cross-examine the said witness. Making the said submission, the learned counsel urges to set aside the Order under Revision. 6. This Court has considered the submissions made and perused the material on record. The Order under Revision was passed mainly on the premise that the I.a in question was filed without filing the affidavit in lieu of chief examination of P.W.3. However, the material on record would disclose that, in fact, an affidavit in lieu of chief examination of P.W.3 was filed on 26.07.2021 vide C.F.No.1355 of 2021. Thus, the observations of the Trial Court are contrary to the record. Further, as pointed out by the learned counsel for the petitioner the matter was posted for defendants' side evidence on 26.07.2021 and on the very same day, the petitioner filed the application to reopen the plaintiff's side evidence along with the affidavit of P.W.3, wherein the reasons for seeking reopening of the plaintiff's side evidence were duly set out. Under such circumstances, this Court is of the view that the observations made by the learned Trial Court with regard to bonafides etc., on the part of the petitioner/plaintiff are not tenable. 7. In the aforesaid view of the matter, the Order under Revision warrants interference by this Court in exercise of its jurisdiction under article 227 of the Constitution of India. accordingly, the same is set aside and I.a.No.423 of 2021 stands allowed. 8. The Civil Revision Petition is accordingly, allowed. No order as to costs. 9. as a sequel, miscellaneous applications, if any, pending shall stand disposed of.