Andhra Pradesh High Court - Amravati
Kunchanapalli Shalemraju vs Natta Ester Rani on 6 September, 2019
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
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HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
Civil Revision Petition Nos.1403 & 1426 of 2019
COMMON ORDER:
Since both Civil Revision Petitions are connected, the same are heard together.
2. Challenging the order dated 11.3.2019 passed in I.A. No.796 of 2018 in O.S. No.1045 of 2014 on the file of the VI Additional Senior Civil Judge, Vijayawada, wherein an application filed to receive and mark the documents was allowed, C.R.P. No.1403 of 2019 is filed by the defendant Nos.1 and 2 under Article 227 of the Constitution of India.
3. Challenging the order dated 11.3.2019 in I.A. No.797 of 2018 in O.S. No.1045 of 2014 on the file of the VI Additional Senior Civil Judge, Vijayawada, wherein an application filed to summon TalariFransis as witness on behalf of the 1st plaintiff was allowed, C.R.P. No.1403 of 2019 is filed by the defendant Nos.1 and 2 under Article 227 of the Constitution of India.
4. The facts in issue are as under :
The petitioners herein are defendants 1 and 3. The 1st plaintiff/ 1st respondent herein filed O.S. No.1045 of 2014 seeking the following reliefs:
a) Directing the defendants 1 and 4 to 7 to cooperate for division of the plaint schedule items 1 and 2 by meets and bounds into 8 equal shares and put in possession of such 1/8th share each to the plaintiffs by way of preliminary decree.
b) In case the defendants 1 and 4 to 7 failed to do so as per the preliminary decree to be passed by the Honourable court, permit the plaintiffs to file a separate petition for passing final decree by appointing a Commissioner of this Honourable court for such division.2
c) For cancellation of registered gift deed dated 11.4.2014 vide document No.4727 of 2014 on the file of the District Sub-Registrar, Guntur, executed by the 1st defendant in favour of the 3rd defendant and registered gift deed dated 5.2.2014 vide document dated 1140 of 2014 on the file of District Registrar, Vijayawada executed by the 1st defendant in favour of the 2nd defendant up to the extent of Plaintiffs' share (each 1/8th).
d) Order for future mesne profits, And
e) Pass such other relief or reliefs as this Hon'ble Court deems fit and proper under the circumstances of the case.
5. It is stated that prior to the death of the mother of the plaintiff, at her instance, all the family members jointly, in the presence of the elder maternal uncle T.Fransis and other elders decided to make partition of the properties and to distribute the sale consideration as per their respective shares. The same was reduced into writing on a non-judicial stamp paper signed by plaintiffs and defendants. The plaintiff could not file the said document as it was with his uncle T.Fransis and hence seeks permission to file the said document before this court. It is stated that on 27.7.2018 the 3rd plaintiff, who is the brother of the plaintiff, issued legal notice demanding him to hand over the same, to which, he gave a reply dated 31.7.2018 stating that the original document was given to the elder brother i.e., the 1st defendant. It is stated that this document is a crucial document for deciding the rights of the parties. He placed on record a xeroxcopy of the said document dated 14.6.2013. Therefore, the present applications came to be filed to summon TalariFransis to prove the contents of the documents and to mark the legal notices.
6. Counter came to be filed disputing the very execution of the 'OppudalaAngeekaraPatram' signed by all the parties. The allegation that the original 'OppudalaAngeekaraPatram', dated 14.6.2013 was given to 3 Fransis was also denied. It is further pleaded that the defendant has nothing to do with the exchange of notices.
7. After considering the rival submissions, the trial Court allowed the I.As. Challenging the same, the present Civil Revision Petitions are filed.
8. Sri P.RajeshBabu, learned counsel appearing for the petitioners, would contend that earlier, I.A. Nos.578 and 579 of 2018 came to be filed to receive the xeroxcopy of the "OppudalaAngeekaraPatram", which was dismissed. The said order has become final. That being the position, the question of summoning the mediator, who was present at the time of the alleged "OppudalaAngeekaraPatram" was executed, cannot be accepted. What could not be achieved earlier is now sought to be achieved through this petition. There is no reference to TalariFransis in the plaint and that being the position, the theory of "OppudalaAngeekaraPatram" being executed in the presence of TalariFransis is a story invented for the purpose of this case.
9. Counsel also took us through the contents of the affidavit filed in support of the I.A. No.578 of 2018 to show that the contents therein and the contents herein are absolutely one and the same, which fact, according to the revision petitioners, was not considered.
10. On the other hand, learned counsel appearing for the respondents would contend that no prejudice would be caused to the petitioners if TalariFransis is examined to speak to the executionof the 'OppudalaAngeekaraPatram'. Since the dispute is between the family members and as there is enough material on record to show the execution of 'OppudalaAngeekaraPatram', he pleads that it would be just and proper to examine TalariFransis.
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11. As seen from the record, earlier the plaintiff along with others filed I.A.No.578 of 2018 in the very same suit and the request in the said application was to permit him to file the Photostat copy of the 'OppudalaAngeekaraPatram' dated 14.6.2013 for marking the same as exhibit on his behalf in the place of original document as secondary evidence in the interest of justice. The said application was dismissed, which has become final. Thereafter, the two I.A.s came to be filed, one I.A. relating to summoning ofTalariFransisto speak to the contents of the documents as secondary evidence in the interest of justice and secondly, to mark the legal notice dated 27.7.2018 issued by the 3rd plaintiff and the legal notice dated 31.7.2018 issued by TalariFransis stating that the original document given to the brother of the 1st defendant in order to confront the same with the witness. Except last paragraph and few sentences in the last but one paragraph of the application, the contents in both I.A.s are one and the same. In I.A.No.578 of 2018 the request was to mark the xeroxcopy of the "OppudalaAngeekaraPatram", dated 14.6.2013, while in I.A. No.797 of 2018 the request was to summon TalariFransis to speak to the contents of the documents as secondary evidence. When the marking of the document as secondary evidence itself was rejected, the question of summoning TalariFransis to speak to the contents of the xeroxcopy of "OppudalaAngeekaraPatram" would not arise. No explanation is forthcoming as to why the order passed in I.A. No.578 of 2018 was never challenged. Apart from that a reading of the plaint does not anywhere indicate the execution of "OppudalaAngeekaraPatram" and there is also no whisper about TalariFransis in the entire plaint. It is also to be noticed here that things would have been different had the earlier order is challenged or such an application was not filed. Having invited the order from the court in I.A.No.578 of 2018 wherein the request for marking the xeroxcopy was rejected as observed by us earlier, summoning TalariFransis 5 to speak to the contents of the same will not arise. It would be appropriate to extract the prayer in the I.A. No.797 of 2018, which is as under :
"I, therefore, pray that the Honourable Court may be pleased to summon "TalariFransis, S/o Vinay Ratnam, Bapuji Nagar, Kothapet, Nuziveedu, Krishna District" to speak the contents of the document, as secondary evidence in the interest of justice."
12. Coming to I.A. No.796 of 2018, the said I.A. came to be filed to mark the legal notice issued by the 3rd plaintiff on 27.7.2018 and legal notice dated 31.7.2018 issued by TalariFransis stating that the original document was given to the elder brother - 1st defendant. Except stating that no prejudice would be caused if these two documents are received, the order is bereft of any reasons. Even the order in I.A.No.797 of 2018 speaks about the contents of the notice given by TalariFransis which was sought to be marked in I.A.No.796 of 2018. Prima facie it appears that the trial Court looked into the contents of the notice issued by TalariFransis even before the document was brought on record.
13. From the above it is clear that what could not be achieved in the earlier round of litigation i.e., I.A. Nos.578 and 579 of 2018 is now sought to be achieved in a different manner by filing the present I.A. Nos.796 and 797 of 2018.
14. Hence, both Civil Revision Petitions are allowed setting aside the order dated 11.3.2019 in I.A. No.796 of 2018 and I.A. No.797 of 2018 on the file of the VI Additional Senior Civil Judge, Vijayawada. No order as to costs.
Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR 06.09.2019 6 skmr