Andhra Pradesh High Court - Amravati
Karumuri Ramateertham vs Thippavathi Venkata Subbaiah on 14 March, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.3566 of 2019
ORDER:
This civil revision petition under Article 227 of the Constitution of India by the respondents/plaintiffs is directed against the orders dated 14.10.2019 of the learned Senior Civil Judge, Proddatur, Y.S.R Kadapa District, passed in IA.No.1150 of 2019 in OS.No.86 of 2006 filed by the 5th defendant under Order VIII Rule 3-A read with Section 151 of the Code of Civil Procedure, 1908 ('the Code') to permit him to file the documents, viz., (i) Certified copy of registered gift deed, dated 30.01.2006; (ii) Certified copy of appeal grounds in A.S.No.16 of 2014 on the file of II Additional District Judge, Kadapa, at Proddatur; and,
(iii) original copy of Award, dated 25.06.2016, in LAC No.200 of 2016, for the purpose of filing them as evidence on his behalf by marking them as exhibits B2 to B4.
2. Heard Sri Polisetty Radhakrishna, learned counsel appearing for the revision petitioners/plaintiffs and Sri Medapati Santosh Reddy, learned counsel appearing for the respondent No.1/5th defendant.
3. The following facts are pleaded in the plaint:
The plaintiffs are the natural brothers. Their mother is sister of the defendant No.1 (Seshachalam) and his elder brother, Venkata Ramaiah. Ever since the family partition on 28.06.1989, Venkata Ramaiah has been in continuous possession and enjoyment of the suit schedule property. Out of love and affection, Venkata Ramaiah, who had no issues, executed a registered Will, dated 05.12.1994, in favour 2 BSB, J C.R.P.No.3566 of 2019 of the plaintiffs bequeathing the schedule property. As Venkata Ramaiah fell ill, the plaintiffs, in order to meet the medical expenses of Venkata Ramaiah, agreed to purchase the very same schedule property for Rs.2,00,000/- on 16.06.2001, but paid advance amount of Rs.1,80,000/- and got executed the agreement of sale on 25.07.2001. While the things stood thus, after Venkata Ramaiah recovered from the illness, the 1st defendant and his family members, got executed a registered gift deed dated 12.10.2001 in favour of 1st defendant by misleading him when he was in weak state of mind. The said gift deed has no legal validity and never binds the plaintiffs. Thus, the plaintiffs filed a suit for specific performance of agreement dated 25.07.2001. In the meantime, Venkata Ramaiah died and the defendant No.1 stepped into the shoes of Venkata Ramaiaih. As the 1st defendant also died, his legal representatives, defendants 2 to 5 are liable to execute the registered sale deed. Defendants 6 to 14 are the legal representatives of deceased 2nd defendant.
A written statement was filed by the 1st defendant (Seshachalam) asserting valid sale by Venkata Ramaiah under the sale deed dated 12.10.2001 and denying title and possession of the plaintiff. It is further pleaded about registered sale deed dated 30.01.2006 in favour of 5th defendant. The 1st defendant expressed no knowledge of agreement of sale, dated 25.07.2001 and pleaded forgery. The 5th defendant filed additional written statement adopting the written statement of the 1st defendant and claiming his right and possession under registered gift deed dated 30.01.2006 3 BSB, J C.R.P.No.3566 of 2019
4. The case of the revision petitioner/5th defendant in the present application is that the documents sought to be filed, viz.,(i) Certified copy of registered gift deed, dated 30.01.2006; (ii) Certified copy of appeal grounds in A.S.No.16 of 2014 on the file of II Additional District Judge, Kadapa, at Proddatur; and, (iii) original copy of Award, dated 25.06.2016, in LAC No.200 of 2016, pertain to the subject matter of the suit schedule property and that the first document was mentioned in the written statement and was admitted by PW1, but he could not file its original as it was misplaced and could not be traced and thus, its certified copy is proposed to be filed. The other two documents came into existence during pendency of this suit, as there was settlement in A.S.No.16 of 2014 between 5th defendant and defendants 3 & 4 herein and an award was passed before the Lok Adalat. Those documents are to be received in evidence as they are necessary to prove his bona fides in the case.
5. The plaintiffs/respondents 1 & 2 filed counter averring that the 5th defendant colluded with previous counsel of these respondents and got filed the suit. While the present suit is pending, the defendants 5 and 6 filed another suit in O.S.No.128 of 2011 for partition of the schedule properties and the said suit was dismissed on 21.06.2014. Aggrieved by the same, A.S.No.16 of 2014 was filed before the II Additional District Judge Court, Proaddaur. Thereafter, the matter was referred to Lok Adalat and an Award was passed on 25.06.2016. The 5th defendant came on record in the year 2008 and since then, the suit was amended three times. The 5th defendant suppressed the fact of filing suit O.S.No.128 of 2011 in his additional written statement. All the documents sought to be received are created with the active 4 BSB, J C.R.P.No.3566 of 2019 collusion of the 5th defendant and others defendants and their counsel. The proposed documents are not valid and would cause prejudice to the case of the plaintiffs. Hence, those documents cannot be received for any purpose. The petition is liable to be dismissed.
6. Convinced by the reasons assigned for not filing the documents before, the trial Court allowed the petition holding that the registered gift deed, dated 30.01.2006 was referred in the written statement and since documents No.2 & 3 came into existence later, there does not arise question of their reference in written statement of 5th defendant. Further, it is held that the question of collusion in getting document Nos.2 & 3 can be gone into in the suit, but not in this application.
7. In the grounds of revision, the revision petitioners took a plea that though the 5th respondent availed the opportunity of amending the written statement thrice prior to filing of the instant application, he could not file these documents at the earliest stage. The 5th defendant failed to explain how these documents are not raised in counter for adjudication of the present suit. The Court below erred in allowing the application without assigning any reasons and deferring the question of collusion.
8. The point for determination is:
Whether the impugned order suffers from any illegality or irregularity warranting interference by this Court?
9. POINT:
As this is a petition under Order VIII Rule 3-A of the Code, what is required for the defendant to receive the documents at that stage is 5 BSB, J C.R.P.No.3566 of 2019 to seek leave of the Court since those documents were not filed along with the pleadings. No parameters have been prescribed as to when leave of the Court shall be granted. Therefore, a wide discretion is given to a Court to consider whether or not such leave can be granted. Thus, in each case, the Court has to exercise its discretion judiciously. Among the three documents, the first one is a certified copy of the document which was referred in the written statement and reason for not filing earlier was found acceptable to the trial Court. This document is relevant to the case in defence. There is no much controversy about it to grant leave. But there is high resistance to the other two documents, mainly contending that the trial Court has not enquired into the aspect of collusion, but simply observed that it can be decided later, and not in this petition.
10. It is a suit for specific performance originally filed against the 1st defendant only, but on his death, his wife (2nd defendant) and his sons (defendants 3 to 5) were brought on record as his legal representatives. On the death of the 2nd defendant, sons and daughters of Ganjikunta Venkata Subbaiah were brought on record as defendants 6 to 14 alleging that legal obligation under the suit agreement devolved on them for having undivided shares in the suit schedule property which originally belongs to Venkata Ramaiah. The defendants No.3 & 4 herein filed a collateral proceedings in suit O.S.No.128 of 2011 against the 5th defendant herein (sons of 1st defendant) for partition amongst themselves and entered into compromise at the appellate stage in A.S.No.16 of 2014 and obtained an award of Lok Adalat. Therefore, now the defendant No.5 wants to adduce the said evidence, viz., grounds of appeal and the award of Lok 6 BSB, J C.R.P.No.3566 of 2019 Adalat as part of evidence in this case. Thus, after filing of this suit, there is change in the factual conditions and legal rights of the defendants. However, the revision petitioner vehemently opposed introduction of such evidence in this case on the ground that there is fraud played in filing the suit and appeal and securing such an award. In this regard, he alleges the role of a counsel, initially appeared for the plaintiffs in the present suit and also for the plaintiffs in O.S.No.128 of 2011 who are none other than defendants 3 and 4 in the present suit. As such, it is vehemently contended before this Court that the trial Court failed to examine the alleged fraud, but simply allowed the petition that it can be examined later on during trial.
11. In any case, though a document is challenged on ground of fraud, collusion, forgery etc., the document is not barred from filing in evidence. It is only after its receipt in evidence, its veracity is decided. Admissibility of any document can be objected on grounds such as want of registration, stamp duty, but not on grounds of fraud, forgery etc. Therefore, at this stage going into question of fraud or collusion is premature.
12. For better understanding, Order VIII Rule 3-A of the Code is reproduced hereunder:
"3A. Denial by defendant in suits before the Commercial Division of the High Court of the Commercial Court.--(1) Denial shall be in the manner provided in sub-rules (2), (3), (4) and (5) of this Rule.
(2) The defendant in his written statement shall state which of the allegations in the particulars of plaint he denies, which allegations he is unable to admit or deny, but which he 7 BSB, J C.R.P.No.3566 of 2019 requires the plaintiff to prove, and which allegations he admits.
(3) Where the defendant denies an allegation of fact in a plaint, he must state his reasons for dong to and if he intends to put forward a different version of events from that given by the plaintiff, he must state his own version. (4) If the defendant disputes the jurisdiction of the Court he must state the reasons for doing so, and if he is able, give his own statement as to which Court ought to have jurisdiction.
(5) if the defendant disputes the plaintiffs valuation of the suit, he must state his reasons for doing so, and if he is able, give his own statement of the value of the suit."
As can be seen from the above provision of Order VIII Rule 3-A of the Code, the veracity of the evidence in the documents sought to be produced cannot be adjudicated at that stage. What is to be examined at that juncture is whether the party could have produced them along with the pleadings or not. If a Court finds that it is just and necessary to permit a party to produce documents even at that stage, it is not a stage to test the veracity of the documents. At the most, if the documents sought to be produced are ex facie irrelevant, leave can be rejected. As rightly observed by the trial Court, it is only after production of the documents in evidence, the question of fraud etc., can be decided. Document No.2 is only to lay foundation for document No.3. Since the right created under document No.3 is effecting the legal obligation amongst the defendants inter se it cannot be regarded as not relevant. Since the other co-defendants are not parties to it, how far their rights in the property are effected in relation to their 8 BSB, J C.R.P.No.3566 of 2019 contractual obligation in the present suit is to be examined in the light of the establishment of fraud or collusion or even if legally valid.
13. In view of the foregoing discussion, this Court finds that there is no merit in the revision petition.
14. In the result, the Civil Revision Petition is dismissed.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
________________ B.S BHANUMATHI, J 14th March, 2022 RAR