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2025 DIGILAW 1035 (AP)

Baswa Venkateswara Rao v. Padala Builibhami Reddy

2025-08-22

SUBBA REDDY SATTI

body2025
ORDER : SUBBA REDDY SATTI, J. The defendant in the suit filed the above four revisions. 2. The respondent/plaintiff filed suit O.S.No.59 of 2016 on the file of learned Principal District Judge, Srikakulam, against the defendant for recovery of amount on the strength of promissory note dated 06.12.2014. 3. For brevity, the parties are referred to, in this order, as plaintiff and defendant. - 4. In the plaint, it was contended that the defendant borrowed an amount of Rs.15,00,000/- from the plaintiff on 06.12.2014 and executed promissory note on the even date. The defendant failed to repay the amount despite reminders. The defendant filed a Caveat O.P. No.2 of 2016 on the file of the Principal Junior Civil Judge, Srikakulam, with false allegations. The plaintiff got issued a registered legal notice, dated 18.02.2016 and thereafter filed the suit for recovery of Rs.19,38,000/- along with interest at 18% per annum on the principal amount, from the date of filing of the suit till the date of realization. 5. The defendant filed a written statement and contended, inter alia, that he never borrowed Rs.15,00,000/- from the plaintiff and denied the alleged transaction. Further, pleaded that he is not the exclusive owner of the suit schedule property. 5. The defendant filed a written statement and contended, inter alia, that he never borrowed Rs.15,00,000/- from the plaintiff and denied the alleged transaction. Further, pleaded that he is not the exclusive owner of the suit schedule property. The plaintiff is doing money lending business in Srikakulam Town since long time and used to lend money for daily interest, weekly interest etc.; that the plaintiff and father of the defendant have close acquaintance; that the defendant for his routine business transactions used to take cash adjustments from the plaintiff and return the same as per his convenience; that the plaintiff used to give cash adjustments by taking some blank promissory notes and unfilled cheques, containing signature of the defendant and the said practice continued for five years without any differences; that differences arose between the plaintiff and the defendant; that the defendant approached Sri Ram City Union and obtained loan by pledging the property, in the last week of December, 2015; that the defendant totally cleared the amount due, to the plaintiff and requested him to return the blank promissory note and unfilled cheques; that on 30.12.2015, the plaintiff illegally and unlawfully demanded the defendant to pay some more money; that the defendant filed a caveat petition to the suit promissory note dated 06.12.2014; that the promissory note is a stock promissory note preserved by the plaintiff and it is not supported by any consideration. - 6. The defendant also filed two additional written statements. 7. The trial in the suit was completed and plaintiff filed written arguments. The suit is coming up for the defendant arguments and posted to 01.11.2024. 8. At that juncture, the defendant filed I.A.No.2201 of 2024 under Section 151 of CPC to reopen the evidence of the plaintiff and I.A.No.2202 of 2024 under Order XVIII Rule 17 CPC to recall PWs1 and 2 for further cross-examination. In the affidavits filed in support of the petitions, it was pleaded that during the cross-examination of PWs1 and 2, the defendant could not instruct his counsel properly. Thus, the cross- examination could not cover all the material aspects and hence, it is essential to reopen the evidence of the plaintiff and recall PWs1 and 2 for the purpose of cross-examination. 9. The defendant also filed I.A.No.2203 of 2024 under Order VIII Rule 1A CPC to receive an un-served envelop cover addressed to the son of the plaintiff. Thus, the cross- examination could not cover all the material aspects and hence, it is essential to reopen the evidence of the plaintiff and recall PWs1 and 2 for the purpose of cross-examination. 9. The defendant also filed I.A.No.2203 of 2024 under Order VIII Rule 1A CPC to receive an un-served envelop cover addressed to the son of the plaintiff. In the affidavit filed in support of the petition, it was pleaded that the defendant got issued a registered legal notice to the son of the plaintiff on 07.02.2016 and the same was returned un-served. The same was misplaced and mixed up with other files at his home and hence, it could not be filed along with the written statement. The said cover was traced out recently and it is necessary. 10. The defendant filed I.A.No.2204 of 2014 to cause production of money lending license. In the affidavit filed in support of the petition, it was pleaded that during cross-examination of PW1, the plaintiff admitted that he got money lending license. However, the same was not produced before the Court and it is essential to prove the defendant’s case. - 11. The plaintiff filed separate counters, opposing the applications. 12. The trial Court, on consideration of all the aspects dismissed the applications by common order, dated 28.02.2025. 13. Against the orders in I.A.Nos.2201, 2202, 2203 and 2204, CRP Nos.1793 of 2025, 1413 of 2025, 916 of 2025 and 1783 of 2025, respectively, are filed. 14. Heard Sri K.J.V.N. Pundareekakshudu, learned counsel for the petitioner. 15. Learned counsel reiterated the contentions as per the averments made in the respective affidavits. He would submit that the trial Court failed to appreciate the contents in a proper perspective. 16. The point for consideration is, whether the common order, dated 28.02.2025, passed by the Trial Court, suffers from perversity or illegality? 17. As seen from the narration of events referred to supra, the suit is coming up for arguments of the defendant. During the trial the plaintiff examined himself as PW1 and got examined PW2. Exs.A1 to A6 were marked. On behalf of the defendant, he examined himself as DW1, got examined DWs2 to 5 and marked Exs.B1 to B6 and Ex.X1 to X2. 18. During the trial the plaintiff examined himself as PW1 and got examined PW2. Exs.A1 to A6 were marked. On behalf of the defendant, he examined himself as DW1, got examined DWs2 to 5 and marked Exs.B1 to B6 and Ex.X1 to X2. 18. As seen from the record, the defendant, during the trial, filed I.A.No.426 of 2023 under Order VIII Rules 2 and 3 of CPC to grant leave to file additional written statement and the same was allowed on 04.12.2023 subject to the payment of costs of Rs.1,000/- to the plaintiff. 19. Thereafter, the defendant also filed I.A.No.687 of 2023 under Order VIII Rule 1-A CPC to receive legal notice dated 05.01.2016 and three un-served postal covers. The said petition was allowed on 12.05.2023. 20. The defendant also filed I.A.No.910 of 2023 under Order VII Rule 11 CPC to reject the plaint and I.A.No.337 of 2024 under Section 151 CPC to reopen his evidence and the said petitions were dismissed on 04.12.2023 and 06.03.2024 respectively. 21. The defendant also filed I.A.No.871 of 2022 under Order XVI Rules 1 and 2 of CPC to summon the Tahsildar, Srikakulam and I.A.No.872 of 2024 under Section 45 of the Indian Evidence. The said petitions were dismissed with costs, on 18.09.2024. 22. The defendant further filed I.A.No.873 of 2024 under Order XVI Rules 1 and 2 read with Section 151 CPC to summon income tax officer, Srikakulam to produce returns of the plaintiff for the financial year, 2014- 15 and assessment year, 2016-17. The said application was partly allowed. The Income Tax Officer was summoned and examined on behalf of the defendant. 23. The defendant filed I.A.No.818 of 2024 under Order XVIII Rule 17 to recall him for marking certain documents and I.A.No.819 of 2024 to receive documents. The said petitions were allowed on 23.04.2024. 24. The defendant filed I.A.No.226 of 2024 under Order XVIII Rule 17A CPC to recall him to mark documents and the same was allowed on 06.03.2024. - 25. The defendant filed I.A.No.227 of 2024 under Order XVI Rule1 (2) CPC read with Section 151 of CPC to summon one Bala Mukumda Rao and Ch. Malleswara Rao, to give evidence on his behalf. The said interlocutory applications were allowed on 05.02.2024. Summons could not be served and hence, the witnesses did not appear. 26. - 25. The defendant filed I.A.No.227 of 2024 under Order XVI Rule1 (2) CPC read with Section 151 of CPC to summon one Bala Mukumda Rao and Ch. Malleswara Rao, to give evidence on his behalf. The said interlocutory applications were allowed on 05.02.2024. Summons could not be served and hence, the witnesses did not appear. 26. The defendant filed I.A.No.228 of 2024 under Order VII Rule 11 CPC to reject the plaint and the same was dismissed with costs on 05.02.2024. 27. Against the order in I.A.No.910 of 2023, the defendant filed CRP No.843 of 2024 and the same was dismissed on 03.10.2024. 28. Thus, as seen from the above narration, the defendant filed several interlocutory applications. 29. As stated supra, after completion of the trial, when the matter is posted for defendant arguments, the defendant filed I.A.Nos.2201 and 2202 of 2024 to reopen the evidence of the plaintiff and recall PWs 1 and 2 for further cross-examination, respectively. In the affidavits filed in support of the said petitions, it was stated that some material questions were not put to the witnesses. 30. In fact, PW1 was cross-examined at length in two spells on two different dates. The reason assigned by the defendant to reopen and recall the witnesses, in the opinion of this Court, is not a plausible reason to allow the petitions. - 31. In Yyesta Sitaramulu @ Bulli Abbulu v. Vantipalli Janaki Ramayya , , [CRP Nos.528 and 529 of 2023] this Court considered the aspect of reopening suit and recalling of witness and observed as follows: “Reopen of suit and recalling of witnesses cannot be allowed to fill up lacunae in the evidence. Inherent power cannot be exercised routinely. The discretionary power is to be used sparingly and not as a general rule” 32. In Bagai Construction Thr. its Proprietor Mr. Lalit Bagai vs. Gupta Building Material Store , [ AIR 2013 SC 1849 ] and held that as under: “11. … The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. … The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either suo motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. “No prejudice is caused to either party” is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground.” - 33. In the case at hand, as stated supra, the defendant except stating that some material questions were not put to the witnesses, failed to assign any cogent or significant reasons. In fact, the trial Court considered these aspects and dismissed I.A.Nos.2201 and 2202 of 2024. 34. This Court does not find any illegality or perversity in the order passed by the trial Court vis-à-vis I.A.Nos.2201 and 2202 of 2024. 34. The defendant also filed I.A.No.2203 of 2024 to receive an un-served envelope cover addressed to the son of the respondent. 35. It is pertinent to mention here that, the defendant, despite filing a written statement and two additional written statements, he has stated nothing about the said envelop cover. In the first place, the petitioner did not make any averment either in the written statement or additional written statements. On the other, the defendant miserably failed to explain the relevancy of the un-served envelop cover addressed to the son of the respondent. 36. As mandated under Order VIII Rule 1-A CPC it is the duty of the defendant to produce documents upon which the relief is claimed or relied upon. On the other, the defendant miserably failed to explain the relevancy of the un-served envelop cover addressed to the son of the respondent. 36. As mandated under Order VIII Rule 1-A CPC it is the duty of the defendant to produce documents upon which the relief is claimed or relied upon. Sub-Rule (1) prescribes that where a defendant base the defense upon a document or relies upon any document shall enter such a document in the list and shall produce the same into the Court along with the written statement. Sub-Rule (2) outlines about the document not in the possession of the defendant and in whose possession the document is. Sub-Rule (3) prescribes granting of leave by the Court in case a document ought to have been produced by the Court, but not produced. - 37. In the present case, a perusal of the affidavit filed by the defendant in support of I.A.No.2203 of 2024, indicates that the plea set out by him does not satisfy the ingredients of sub-sections 1 to 3 of Order VIII Rule 1-A CPC. No specific explanation was given by the petitioner. In fact, the Trial Court considered the same and dismissed the application. 38. The defendant also filed I.A.No.2204 of 2024 under Order XII Rule 8 of CPC, to direct the plaintiff to produce money lending license. 39. Order XII CPC delineate about admissions. Order XII Rule 8 prescribes a notice to produce document. It is appropriate to extract order XII Rule 8 CPC, which reads thus: “Notice to produce documents shall be in Form No.12 in Appendix C, with such variations as circumstances may require. An affidavit of the pleader, or his clerk, of the service of any notice to produce and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served.” 40. A plain reading of Rule 8 of Order XII prescribes that the litigant, by serving a notice directs the opponent to produce document in his custody. 41. No doubt, in the case at hand, the plaintiff, as per order of the trial Court admitted, in his evidence about his possessing a money lending license. A plain reading of Rule 8 of Order XII prescribes that the litigant, by serving a notice directs the opponent to produce document in his custody. 41. No doubt, in the case at hand, the plaintiff, as per order of the trial Court admitted, in his evidence about his possessing a money lending license. Such admission per se, will not entail the defendant to file an application under Order XII Rule 8 CPC to direct the plaintiff to produce document. In fact, the trial Court observed that in the State of Andhra Pradesh, it is not mandatory to have license to carry out money lending business as per the Andhra Pradesh Money Lenders Act, 2000. - 42. The trial Court, on a careful consideration of the material, considered all the petitions and eventually dismissed with costs. In the considered opinion of this Court, the defendant filed the interlocutory applications only to protract the litigation. This Court does not find any irregularity or perversity in the common order dated 28.02.2025 passed by the learned Principal District Judge, Srikakulam in I.A.Nos.2201, 2202, 2203 and 2204 of 2024. There are no merits in the civil revision petitions. 43. Hence, these civil revision petitions are dismissed. However, no costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.