Telangana High Court
M/S Narne Estates Pvt Ltd vs Nellutla Kummari Shiva Raju, on 1 February, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA CIVIL REVISION PETITION NOS.1549 AND 1550 OF 2023 COMMON ORDER:
Being aggrieved by the common Order dated 12.04.2023 passed in I.A.Nos.200 and 201 of 2023 in O.S.No.116 of 2014 by the learned Principal District Judge, Bhongir, the petitioner, who is the plaintiff in the subject suit, has preferred these Civil Revision Petitions under Article 227 of the Constitution of India.
2. For the sake of convenience, the petitioner as plaintiff and the respondents as defendants will be referred as they arrayed before the trial Court.
3. The backdrop of the instant case on hand is that the plaintiff has instituted a suit for specific performance of agreement of sale dated 23.02.1999 directing defendant No.1 to execute and register the sale deed in favour of the plaintiff company by receiving balance sale consideration alleging that the plaintiff and defendant No.1 entered into a sale agreement dated 23.02.1999 in respect of the lands admeasuring Ac.08.12 Guntas in Sy.No.561/A and Ac.07.33 Guntas in Sy.No.562/AA, in total Ac.16.06 Guntas situated at Bibinagar Village and Mandal. Defendant No.1 agreed to sell the subject lands to the plaintiff company for a sum of Rs.1,00,000/- per acre and executed agreement of sale dated 23.02.1999 in favour of the plaintiff and that defendant No.1 received a sum of Rs.8,30,000/- by way cheques towards part consideration and handed over permissive possession of the subject lands to the plaintiff and that defendant No.1 agreed to receive the balance consideration at the time of registration. Though the plaintiff complied with the conditions agreed in the sale agreement, defendant No.1 refused to register the same as such the plaintiff constrained to file the subject suit.
4. After closure of evidence on either side, when the subject suit stands posted for hearing the arguments, I.A.Nos.200 and 201 of 2023 have been filed under Section 151 of Code of Civil Procedure, 1908 (for short 'C.P.C.') and Order XVI Rule 1(2) read with Section 151 of C.P.C. respectively, seeking to reopen the evidence on the side of the defendants and to summon defendant No.1, namely, Nellutla Kummari Shivaraju to subject him for cross-examination on his pleadings, wherein, defendant No.1, who entered into the agreement of sale dated 23.02.1999, was not entered into the witness box. Instead of defendant No.1, defendant No.4 was examined as DW.1 and reported no further evidence. However, the entire suit transaction was revolves around defendant No.1 as such he cleverly avoided entering into the witness box, in fact, crucial aspects of the transaction to be elicited from defendant No.1 by way of cross-examination, which goes to the roots of the case and it is very helpful to the trial Court for better adjudication of the matter. The defendants opposed the said applications on various grounds. After considering the rival submissions of both the parties and also the facts and circumstances of the case, the trial Court has dismissed those applications.
5. Being aggrieved, the plaintiff has preferred these Civil Revision Petitions on the following grounds:
The trial Court has failed to consider his applications, which enables the party for obtaining summons for attendance of any person by filing an application stating the purpose for which the witness proposed to be summoned. The trial Court instead of summoning defendant No.1 erroneously dismissed the applications, which is against the settled principles of law as such prayed for setting aside the impugned common Order.
6. Learned counsel for the plaintiff would submit that the defendant No.1, who entered into the contract, was not examined by the defendants and his cross-examination is essential to establish the claim of the plaintiff and also for better adjudication of the matter.
7. Per contra, learned counsel for the defendants vehemently argued that there is no illegality in the impugned Order and it is for the defendants whether defendant No.1 gave evidence or not and defendant No.1 is aged about 88 years as such instead of defendant No.1, defendant No.4 was examined, therefore, prayed this Court to dismiss these Civil Revision Petitions.
8. As could be seen from the material available on record, it manifests that the plaintiff company entered into contract with defendant for the purchase of subject lands for sale consideration and that defendant No.1 agreed to sell the subject lands and entered into the agreement of sale on 23.02.1999 after receiving the part of sale consideration from the plaintiff company. The main contention of the plaintiff is that DW.1, who is the son of defendant No.1, is not aware of the transaction which was executed between defendant No.1 and the plaintiff company and defendant No.1 has cleverly avoided entering into the witness box to suppress the material facts and in view of said failure, the plaintiff sought for summoning defendant No1 to subject him for cross-examination.
9. The trial Court has placed reliance on Dr.Amitabh Sen V. M/s Sports World 1 and K.K.Velusamy v.
N.Palaaniswamy 2, and observed that earlier when the subject suit stands posted for arguments, the plaintiff filed applications seeking to reopen and recall the evidence of PW.2. Again, when the matter posted for arguments, the plaintiff came up with fresh applications seeking to reopen the evidence on the side of the defendants and issue summons to defendant No.1, who is aged about 88 years and suffering age ailments and other illness, to subject him for cross-examination. The plaintiff could have sought for this relief also in the earlier application itself, if he was diligent to prosecute the matter, but he failed to do so, for the reasons best known to him. So also, the plaintiff failed to show the sufficient grounds to summon defendant No.1 at this belated stage, since the matter is pertaining to the year 2014 and that 1 AIR 2008 Del 118 2 (2011) 11 SCC 275 the trial Court hold that there are no merits in the said applications to consider.
10. Having regard to the peculiar facts and circumstances of this case, it transpires that the subject suit is filed in the year 2014 basing on the transaction took place between the parties on 23.02.1999 and that it is the prime duty of the plaintiff to establish his case by adducing oral and documentary evidence on his behalf. On the face of the record, in spite of ample opportunity and sufficient time was granted to the plaintiff, the plaintiff used to come up with one or the other application stating that it is necessary for him to establish his case and for better adjudication, without any cogent reasoning. In "Amitabh Sen"
(cited supra) case it is observed that summoning opposite party or his witness is an unusual step and it can be permitted only in exceptional circumstances. There are no such circumstances in the present case and petitioner failed to prove such circumstances in the present case.
11. After meticulously scanning the entire material placed before this Court and, be it viewed from any angle, this Court is of the considered opinion that the common Order of the trial Court is sustainable under law and the interference of this Court by exercising the jurisdiction under Article 227 of the Constitution of India is not warranted. Therefore, these Civil Revision Petitions are devoid of merits and are liable to be dismissed.
12. Under the circumstances narrated hereinbefore, these Civil Revision Petitions are dismissed. There shall be no order as to costs.
Pending Miscellaneous Applications, if any, shall stand closed.
______________ K.SUJANA, J Date:01.02.2024 ynk THE HONOURABLE SMT. JUSTICE K. SUJANA CIVIL REVISION PETITION NOS.1549 AND 1550 OF 2023 Dated 01.02.2024.
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