Andhra Pradesh High Court - Amravati
Yallamilli Venu Mohan vs Kona Venkata Srinivasa Rao on 31 October, 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.1796 of 2019
ORDER:
The sole plaintiff before the trial Court filed this civil revision petition under Article 227 of the Constitution of India questioning the correctness of order dated 12.06.2019 of learned Junior Civil Judge, Mummidivaram in I.A.No.128 of 2019 in O.S.No.114 of 2007. He is aggrieved because of the fact that under the impugned order, learned trial Court granted leave for defendant No.6 in the suit in filing certain documents. Defendant No.6 in the suit is respondent No.1 in this revision. Respondent Nos.2 to 6 are rest of the defendants in the suit.
2. This revision petitioner filed O.S.No.114 of 2007 stating that the suit schedule property belongs to Sri Gopala Krishna and he died. Defendant No.2 is his wife and defendant Nos.3 and 4 are his daughters and plaintiff is his son. Therefore, the suit property shall be divided into four shares and grant him one share. Plaint further shows that defendant No.1 is a woman in illegal intimacy with late Gopala Krishna. Gopala Krishna purchased one of the items of the suit schedule property in the name of that woman. Plaint further shows that defendant No.5 in the suit claimed to have purchased another one item of the suit schedule under a registered sale deed dated 2 Dr. VRKS, J C.R.P.No.1796 of 2019 23.02.2007 executed by defendant No.1. Plaint further shows that defendant No.6 in the suit was not originally party and the plaintiff by filing I.A.No.293 of 2016 got him impleaded. The amended plaint indicates that as per the written statement of defendant No.1, one of the items of the suit schedule property was sold out by her under a registered sale deed dated 30.06.2007 and that she got that property because of a Will dated 30.12.2005 executed by late Gopala Krishna in her favour. Those are the essential averments in the amended plaint. It seems that issues in the suit were settled and the evidence in the suit was commenced and the evidence on plaintiff's side was over and the matter was posted for evidence on defendants' side. It is at that stage, defendant No.6 came up with I.A.No.128 of 2019 in O.S.No.114 of 2007 under Order VIII Rule 1A and Section 151 C.P.C. requesting the Court to condone the delay in filing 9 documents listed therein and receive them. Those documents are as below: 1 to 9:
"1. Certified copy of the registered sale deed dt: 30.06.2007
2. Certified copy of the ratification deed doct.19.11.2018
3. Certificate issued by Tahsildar, Mummidivaram about the correct survey number dt: 07.05.2018
4. Original sale deed dt: 04.07.2002 in the name of 1st defendant and her husband.3
Dr. VRKS, J C.R.P.No.1796 of 2019
5. Original unregistered will dt: 30.12.2005 executed by Yellamelli Gopala Krishna
6. Bunch of Tax receipt for my landed property.
7. Adangal copy for my landed property issued by Tahsildar, Mummidivaram
8. 1-B copy for my landed property issued by Tahsildar, Mummidivaram
9.Pattadar Passbook issued by the Tahsildar, Mummidivaram"
3. Defendant No.6, being the petitioner in I.A.No.128 of 2019, swore an affidavit in support of the petition and stated that all the necessary averments were there in his written statement about his purchase of the property from defendant No.1 and about defendant No.1 getting the property under a Will. It also mentions about the original sale deed executed by defendant No.1 in his favour and about mistake in the survey number and how a registered rectification deed was made by the executant. It further shows that when he purchased property from defendant No.1, she handed over the original unregistered Will dated 30.12.2005, but that was misplaced in his house and he recently traced it out and therefore, there is delay so far as Will is concerned. For other registered documents, he stated that the originals were kept with society 4 Dr. VRKS, J C.R.P.No.1796 of 2019 and he borrowed loan for the purpose of his agricultural operations and thus, the documents were used for mortgage. Therefore originals could not be filed. That he recently obtained certified copies of such originals. With such averments, he sought leave of the Court and receive the documents. Plaintiff was shown as 6th respondent in that application. He filed a counter denying the petition mentioned averments. It is stated that the Will dated 30.12.2005 is not at all in existence. That the petitioner filed his written statement on 13.11.2017 and mentioned about this sale deed and the unregistered Will, but did not choose to file along with the written statement. Issues were settled, which also make a reference to this unregistered Will. Defendant No.1 in her sale deed in favour of defendant No.5 did not make a mention about this Will and in the sale deed executed by defendant No.1 in favour of defendant No.6 also there is no recital about the Will. When the plaintiff testified as PW.1 or when cross-examination of DW.1 was done, the Will was not produced. Defendant No.1 gave evidence as DW.1 and in her cross-examination she said that the Will was in her possession. Defendant No.1 is the propounder of the alleged Will but she did not file it. While the cross-examination of DW.1 is pending, defendant No.6 has come up with this 5 Dr. VRKS, J C.R.P.No.1796 of 2019 petition. The alleged Will is prepared on a scrap of paper by manipulation. Then it is stated that the petitioner/defendant No.6 is a practicing advocate with 20 years standing behind him. The delay stated is misplacement of Will and its recovery and it does not disclose the date of tracing out the Will and how he traced it out. As he/plaintiff took serious contentions about non-existence of the alleged Will dated 30.12.2005, the present Will is fabricated and is attempted to be brought on record at this stage. For these reasons he sought for dismissal of the petition.
4. Learned trial Court after considering the material on record and considering the submissions made by both sides, allowed the petition and received the documents subject to proof and relevancy. It also mentioned that legal burden to prove Will as contained in Section 68 of the Indian Evidence Act is on the propounder of the Will, who is the petitioner before it, who is defendant No.6 in the suit.
5. Aggrieved by that order, the plaintiff in the suit has come up with this revision stating that learned trial Court failed to appreciate the scope of Order VIII Rule 1A C.P.C. and allowed the petition in a routine manner. The documents were not filed 6 Dr. VRKS, J C.R.P.No.1796 of 2019 along with the written statement and they are sought to be filed after commencement of trial and seeking leave of the Court was required and such application must explain the reasons for failure to file the documents along with written statement. That the application of defendant No.6 before the trial Court does not contain any such explanations. For these reasons, he sought for setting aside the order of the trial Court.
6. During the course of arguments, learned counsel for revision petitioner states that there was failure of justice on part of the trial Court and it ought not to have received the documents and cited Zulfikar Hussian v. Zainab Begum (died)1.
7. Learned counsel for respondent No.1 submits that what all that is pleaded in the written statement is borne by documents and it is only those documents, which he sought to present before the Court and the trial Court rightly exercised its discretion and received the documents and such documents are necessary for the decision in the suit and there is nothing to interfere with the impugned order.
1 2018 (4) ALT 1995 (AP) 7 Dr. VRKS, J C.R.P.No.1796 of 2019
8. Having heard the learned counsel on both sides and having perused the material on record, the point that falls for consideration is:
"Whether in considering the application for granting leave for documents in terms of Order VIII Rule 1-A(3) C.P.C. the trial Court committed any error resulting in miscarriage of justice?
9. Point:
For benefit, Order VIII Rule 1-A C.P.C. is extracted here:
"1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him:- (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the defendant under this rule, but is not so produced 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 documents--
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory."8
Dr. VRKS, J C.R.P.No.1796 of 2019
10. The provision shows that where the defendant has based his defence upon documents he is expected to file them along with the written statement. The provision does not show that if such documents are not filed along with the written statement, the defendant is forever prohibited from filing any such documents. The provision further provides that the defendant is entitled to file documents at a later stage but he should do it only after obtaining leave from the Court. On what grounds leave could be granted or refused is not provided by the provision itself. Therefore, it is completely the discretion of the Court holding the trial to decide this aspect of the matter. By the impugned order, the learned trial Court exercised its discretion and granted leave. A Court of law merely receiving documents by itself does not result in miscarriage of justice to anyone. This Court in M.B.Chander v. M/s. Balakrishna Rao Charitable Trust2 held that concerning reception of certain pieces of evidence or rejection of certain pieces of evidence they are not matters amenable for revision under Article 227 of the Constitution of India. In that view of the matter, this revision is not maintainable at all.
2 (2016) 6 ALT 1 9 Dr. VRKS, J C.R.P.No.1796 of 2019
11. The amended plaint itself speaks about defendant No.1 selling away properties in favour of defendant No.6 and defendant No.1 claiming right to sell the properties emanating out of an unregistered Will. It is also undisputed that defendant No.6 was originally not a party to the suit. It is the plaintiff, who dragged him to the litigation. It is undisputed that defendant No.6 filed his written statement and made averments concerning the Will and thereafter the sale deed under which he had come to purchase the property etc. Thus, all the necessary averments were there in the written statement. The written statement refers to documents also. Only lapse was, these documents were not filed along with the written statement. When they were sought to be filed and a prayer for leave was sought for, the trial Court felt it was in the interest of justice to allow it and accordingly it allowed it. Now the question is, did it exercise its jurisdiction as is required under law? That can be assessed only when there are facts enabling the Court to have a prudent exercise of discretion. The facts in the affidavit of the petitioner before the learned trial Court show that one set of documents were lying with a society by way of mortgage and therefore, certified copies are now obtained and they are sought to be filed. Coming to the Will, it is stated that in the house it 10 Dr. VRKS, J C.R.P.No.1796 of 2019 was misplaced and now it retraced. Whether such a Will is genuine or fake is a matter to be decided at the trial. The contention of the revision petitioner that such Will never existed is repelled by defendant No.6 by producing the Will. Therefore, the genuineness of the Will, which is matter for consideration in the trial, cannot be thwarted by non-receiving of the Will. When a client says that he misplaced it in the house and retraced it, there shall be some reason for a Court to discard it. In the present case, all the documents find their reference in one way or other in the pleadings itself. Therefore, non-filing of them along with the written statement on the ground that the Will was not traced seems to be a genuine cause. Otherwise what would be the benefit a party gets by withholding a document, which he was narrating in his own written statement. Therefore, the facts were properly analyzed by the trial Court and it appropriately exercised its discretion.
12. The contention of the revision petitioner is that the 1st respondent is a practicing advocate and the date of the misplacement, the date of tracing it out, the place where he traced it out are not mentioned and therefore his explanations are not acceptable and cited in his support Zulfikar Hussian's case (supra 1). That judgment does not say that documents 11 Dr. VRKS, J C.R.P.No.1796 of 2019 could never be received by the Court. The concluding paras of that judgment indicate Court granting permission for certain documents. That was a case where this Court finds that evidence on both sides was over and 14 years after closure of evidence on plaintiff's side certain documents were sought to be brought on record by the plaintiff by reopening the evidence. It was in that context, this Court had to say that the large volume of the documents that were proposed to be filed were sought to be justified on a ground that they were misplaced and for accepting such stray sentence, the required details were missing in the petition. So, in the nature of the facts available before it, this Court had taken certain decisions in the above cited ruling. In the case at hand keeping the originals with the society by way of mortgage and failing to locate the Will at the time of written statement and trying to file them even before defendant No.6 commenced his evidence certainly justified the trial Court in allowing the petition. There are absolutely no merits in this revision. Point is answered against the revision petitioner.
13. In the result, this Civil Revision Petition is dismissed with costs confirming the order dated 12.06.2019 of learned Junior Civil Judge, Mummidivaram in I.A.No.128 of 2019 in O.S.No.114 of 2007.
12
Dr. VRKS, J C.R.P.No.1796 of 2019 As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 31.10.2022 Ivd 13 Dr. VRKS, J C.R.P.No.1796 of 2019 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION No.1796 of 2019 Date: 31.10.2022 Ivd