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2025 DIGILAW 485 (AP)

Ayesha Khanam v. Akhtharunnisa Begum Akthar Azeem

2025-03-18

B.S.BHANUMATHI

body2025
Order : (B.S. Bhanumathi, J.) The Civil Revision Petition is filed under article 227 of Constitution of India against the order dated 10.09.2024, partly allowing I.A.No.87 of 2024 in OS.No.143 of 2018, on the file of Court of IV Additional District and Sessions Judge-cum-Family Court, Kurnool, filed by the plaintiffs under Order VII, rule 14 and Section 151 CPC , to condone the delay in filing the following four documents and receive them for the purpose of evidence on their behalf. The list of documents are as follows: "1. Hiba Dhruveekarana Patram (Hiba Declaration Deed) Dt.26-04-2016 in favour of Shamshad Ahmed Khaleel in respect of Plot No.10 & 14 in Sy.No.665 part & 666 part of Kallur village - Original 2. Hiba Dhruveekarana Patram (Hiba Declaration Deed) Dt.26-04-2016 in favour of Ayesha Khanam in respect of Plot No.37 & 38 in Sy. No.781/C1B of Kallur village -Original 3. Regd. Sale Deed No.2630/1974 Dt.08-05-1974 SRO Kumool executed by L. Mohammed Ibrahim in favor of Aktharunnisa Begum in respect of Plot No. 38 in Sy. No.781/C1B of Kallur village - Original 4. Regd. Gift Settlement Deed No.4144/1985 Dt.08-05- 1985 SRO Kurnool executed by L.Haji Mohammed Ibrahim in favor of Aktharunnisa Begum in respect of Plot No. 10, 3 & 14 in Sy.No.665 part & 666 part of Kallur village –Original" 2. The plaintiffs filed suit for declaration of their title and recovery of possession and consequential relief of cancellation of registered gift deed No.3983 of 2018 dated 28.03.2018, SRO, Kalluru, executed in favour of the defendant No.2, Sameena Azeem, as null and void. 3. The case of the plaintiffs is that on 04.06.2015, the defendant No.1 orally gifted the plaint scheduled properties to her daughters viz., the plaintiff No.1 and Smt. Shamshad Khaleel both of who accepted the gift and then on 26.04.2016, the defendant No.1 ratified the oral deeds by executing hiba declaration deeds basing on which the plaintiff No.1 executed a registered gift settlement deed No.7603 of 2016 in favour of the plaintiff No.2 and Smt.Shamshad Khaleel executed a registered gift settlement deed No.8071 of 2016 in favour of the plaintiff No.1. The plaintiff further pleaded that on 28.03.2018, from the defendant No.2 forcefully and illegally got executed the gift deed No.3983 of 2018 in her favour through the defendant No.1 in respect of the plaint scheduled properties and got advertised the properties for sale online in OLX platform, however, the plaintiff did not file the unregistered hiba documents dated 26.04.2016 or the registered sale deed and gift settlement deed dated 08.05.1974 and 08.05.1985 in favour of the defendant No.1, along with the plaint as they were misplaced, but, as they are important/crucial and relevant documents in support of the case of petitioners/plaintiffs, the above petition in I.A.No.87 of 2024 was filed. 4. The respondent No.1 died. The respondent No.4 remained ex-parte. The petition was opposed by filing separate counters of the respondent Nos.2 and 3 / defendant Nos.2 and 3. 5. The respondent No.2 contended that the documents were forged and fabricated since no oral gifts had been made by the respondent No.1 / defendant as alleged by the plaintiffs and that the petitioners suppressed the material facts and filed the petition after lapse of six years from filing of the suit. 6. The respondent No.3 filed counter supporting the petition. 7. After hearing both parties, the trial Court allowed the petition permitting the original registered documents shown at serial Nos.3 and 4, while dis-allowing documents at serial Nos.1 and 2 as they are unregistered documents and as the respondents totally denied their genuineness and also as they were filed six years after filing of the suit and after the death of defendant No.1. 8. Aggrieved by the order, this revision petition was filed by the petitioners / plaintiffs stating that the trial Court erred in considering and appreciating the aspects of admissibility and relevancy of the documents at the stage of consideration of a petition under Order VII, rule 14 CPC and that the plaintiff intended to bring on record them which were never confronted with the DW1 / defendant No.1. 9. The learned counsel for the petitioners contended that at the time of considering application under Order VII, rule 14 CPC , the reasons for not being filed along with the plaint alone shall be taken into consideration and the admissibility, relevancy or genuineness of a document shall not be considered at that juncture. 9. The learned counsel for the petitioners contended that at the time of considering application under Order VII, rule 14 CPC , the reasons for not being filed along with the plaint alone shall be taken into consideration and the admissibility, relevancy or genuineness of a document shall not be considered at that juncture. He further submitted that a pleading regarding these documents had been already taken in the plaint and moreover these documents had been tendered to the witness i.e, DW1 / defendant No.1 in her cross examination and therefore, they are not the documents newly created or fabricated as contended by the other side. He further submitted that as the trial Court allowed the documents No.3 and 4 in the list to be filed, the other two documents at serial Nos.1 and 2 also ought to have been allowed to be filed, because the reason is the same for not filing them with the plaint. 10. The learned counsel for the respondent No.2 contended that these documents ought to have been filed along with the plaint and if they could not be filed, reasons ought to have been mentioned in the plaint and also in the present petition, but a vague and routine explanation for not filing these documents earlier was stated in the petition. He further submitted that since the documents at serial Nos.1 and 2 were said to be tendered in the cross examination of DW1 which was held in the year 2020, these documents ought to have been immediately filed when DW1 was alive, but even then they had not been filed and without proper reason or explanation, in the year 2024, they were sought to be filed. It is further contended that this respondent had not raised objections against the order allowing documents Nos.3 and 4 as they are original registered documents, whereas this respondent seriously disputes the unregistered documents and therefore, they cannot be permitted to be filed, more particularly in view of the categorical denial of execution of these documents by DW1. 11. The respondent No.2 filed memo of the written arguments stating that the delay in filing the documents shall be properly explained and that the plaintiffs suppressed the material facts and did not produce these documents along with the plaint nor did they disclose misplacement of the main documents. 11. The respondent No.2 filed memo of the written arguments stating that the delay in filing the documents shall be properly explained and that the plaintiffs suppressed the material facts and did not produce these documents along with the plaint nor did they disclose misplacement of the main documents. The learned counsel for the respondent No.2 placed reliance on the decision of the Supreme Court in H.Guruswamy and others Vs. A.Krishnaiah (dead) by LRs ( 2025 SCC OnLine SC 54 ) wherein at paragraphs No.16 and 17, it is held as follows:? "16. The length of the delay is definitely a relevant matter which the Court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay. 17. We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the 'Sword of Damocles' hanging over the head of a litigant for an indefinite period of time." 12. He further referred to the decision of this High Court in Kottakota Lakkappa and 5 others Vs. B.Lakkappagari Chikkaiah and 6 others ( CRP No.4776 of 2016, dated 18.08.2023 ) wherein at paragraph No.13, it is held as follows: "13. He further referred to the decision of this High Court in Kottakota Lakkappa and 5 others Vs. B.Lakkappagari Chikkaiah and 6 others ( CRP No.4776 of 2016, dated 18.08.2023 ) wherein at paragraph No.13, it is held as follows: "13. This Court in Ravi Satish and Voruganti Narayana Rao cases (supra) held that grant of leave is not for mere asking, nor is the Court a mere Post-Office to receive documents even in the absence of any reasons being furnished for failure to file the said documents along with the written statement." 13. In reply, the learned counsel for the petitioners submitted that hiba does not require registration even if it is reduced into writing and placed reliance on the decision of the Supreme Court Rasheeda Khatoon Vs. Ashiq Ali ( MANU/SC/0901/2014 ) wherein at paragraph No.16, it is held as follows: "16. From the aforesaid discussion of the propositions of law it is discernible that a gift under the Muhammadan Law can be an oral gift and need not be registered; that a written instrument does not, under all circumstances require registration; that to be a valid gift under the Muhammadan Law three essential features namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration Under Section 17 of the Registration Act." 14. He further submitted that DW1 had not out-rightly denied her signatures on the disputed documents, but merely stated that the contents were to be read over and as she had admitted her signature on the registered sale deed dated 26.04.2016 executed on the same day of the unregistered hiba deeds, her signatures on the disputed documents can be examined with the signatures on the admitted registered documents. With regard to limitation, he submitted that rules of limitations are not meant to destroy the rights of the parties as held by the Supreme Court in Guruswamy case referred supra and that entire case of the plaintiffs depended on these two documents. He further contended that procedural law shall not come in the way of adjudication rights of the parties as held by Apex Court in Levaku Pedda Reddamma & ors. He further contended that procedural law shall not come in the way of adjudication rights of the parties as held by Apex Court in Levaku Pedda Reddamma & ors. versus Gottumukkala Venkata Subbamma & anr ( 2022 Live Law SC 533 ) wherein at paragraphs No.5 and 6, it is held as follows: "5. We find that the trial Court as well as the High Court have gravely erred in law in not permitting the defendants to produce documents, the relevance of which can be examined by the trial Court on the basis of the evidence to be led, but to deprive a party to the suit not to file documents even if there is some delay will lead to denial of justice. 6. It is well settled that rules of procedure are hand- maid of justice and, therefore, even if there is some delay, the trial Court should have imposed some costs rather than to decline the production of the documents itself." 15. Order VII, rule 14 CPC reads as follows: "14. Production of document on which plaintiff sues or relies.— (1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is. (3) 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 hearing of the suit. (4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory." 16. (4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory." 16. The discretion given under Order VII, rule 14 CPC shall be judiciously exercised taking into consideration facts and circumstances in each case and there cannot be any straightjacket formula to meet the requirement in the light of facts and circumstances in all cases. In the present case, except stating that these documents could not be filed along with the plaint, as they were misplaced, no other reason was stated. It is pertinent to mention that these documents were said to be tendered in the cross examination of DW1 in the year 2020. At least, from that time, till the date of filing of the petition, the reason for not filing has not been stated. However, these documents were referred in the pleadings and also said to be tendered to the witness in the cross examination of DW.1. As such, they are not new documents which are sought to be brought on record to the surprise of the other party. At the time of granting permission under Order VII, rule 14, CPC , the contentions of the respondents that they were fabricated are not or genuine need not be seriously gone into as they are matters of appreciation of evidence. Of course, the petitioner is required to state cogent reason for not being able to file along with the plaint and for filing them at a later stage. Though they were referred in the plaint, no reason was stated as to why they could not be filed along with the plaint. All these circumstances would show that the petitioner had not properly explained the reason for not filing them along with the plaint or at the time of cross- examining DW.1. However, if the documents are material evidence to adjudicate the lis on merits, rules of procedure should not always come in the way of rendering justice. For the benefit of court to decide the issue on merits on main issues, all such necessary evidence as is required can be permitted to be placed on record. If there are any some latches on the part of the parties, the same can be compensated by imposing some terms as to costs. 17. For the benefit of court to decide the issue on merits on main issues, all such necessary evidence as is required can be permitted to be placed on record. If there are any some latches on the part of the parties, the same can be compensated by imposing some terms as to costs. 17. The admissibility of the documents in evidence due to non- registration is also primarily shown by placing reliance on the decision of the Supreme Court (referred supra) which prima facie shows the admissibility of those documents also in the evidence. But, without going into the question of admissibility of the document, leaving it open to the trial Court to decide at the time of tendering this document in evidence, this Court is of the view that allowing documents No.1 and 2 in evidence is not erroneous, particularly when the reasons stated for not filing all four documents is the same, it is incorrect to permit two documents as they are registered and reject the other two documents as they are unregistered. Under these circumstances, since no terms were imposed while allowing documents 3 and 4, no separate terms are required to be imposed for receiving documents No.1 and 2 as well. 18. In the result, the revision petition is allowed by setting aside the order dated 10.09.2024 in I.A.No.87 of 2024 in O.S.No.143 of 2018 on the file of the court of Judge, Family Court-cum-IV Additional District and Sessions Judge, Kurnool and the said I.A. is allowed in respect of documents 1 and 2 as well. 19. There shall be no order as to costs. 20. Interim orders granted earlier, if any, shall stand vacated. Pending miscellaneous applications, if any, shall stand closed.