Telangana High Court
D Ramchander, R.R.Dist vs M/S Narne Estate Pvt Ltd, Secbad on 30 June, 2022
Author: Chillakur Sumalatha
Bench: Chillakur Sumalatha
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
CIVIL REVISION PETITION Nos.640 of 2016, 5323 AND
5377 OF 2015
COMMON ORDER:
Heard Sri C.Shanmukha Rao, learned counsel appearing for the revision petitioners as well as Sri B. Raveendra Babu, learned counsel appearing for the respondent.
2. Challenging in these revision petitions is the common order rendered by the Court of Principal Junior Civil Judge, Medchal in I.A.Nos.126, 127 and 128 of 2015 in O.S. No.620 of 2007 dated 30.09.2015.
3. The respondent herein who is the plaintiff to the suit in O.S.No.620 of 2007 moved three interlocutory applications vide I.A.No.126 of 2015, I.A.No.127 of 2015 and I.A.No.128 of 2015 seeking the Court to reopen the evidence, to recall Pw1 for further evidence and to receive Memorandum and Articles of Association, Certificate of incorporation and the copy of Board Resolution dated 2 Dr.CSL, J CRP Nos.640 of 2016, 5323 & 2377 of 2015 11.09.2014. Those three applications were allowed by a common order dated 30.09.2015. Aggrieved by the same, the revision petitioners are before this Court.
4. Making his submission, learned counsel for the revision petitioners contended that those interlocutory applications i.e., I.A.No.126 of 2015, I.A.No.127 of 2015 and I.A.No.128 of 2015 were filed at the stage of arguments. Learned counsel stated that the suit is of the year 2007 and after the trial is completed, those interlocutory applications were moved and though objections were raised by filing counter, learned Judge of the trial Court allowed those applications and thereby reopened the suit proceedings which is unjustifiable. Learned counsel also stated that, earlier the respondent moved two applications vide I.A.Nos.659 and 660 of 2014 for recalling Pw1 and for receiving certain documents and those applications were allowed and at that time, the documents sought to be produced through I.A.No.128 of 2015 were not produced and, therefore, the respondent 3 Dr.CSL, J CRP Nos.640 of 2016, 5323 & 2377 of 2015 herein has got no right for production of documents. But, without considering even this fact, those applications were allowed. Submitting that there should be an end to the litigation and dragging the proceedings is undesirable, learned counsel for the revision petitioners relied upon the decision of the Hon'ble Supreme Court of India in the case between Gayathri vs. M.Girish reported in (2016) 14 Supreme Court Cases 142, wherein dealing with dilatory tactics adopted before the trial Court, the Apex Court at para No.9 of the order held as follows :
"The non-concern of the petitioner-defendant shown towards the proceedings of the court is absolutely manifest. The disregard shown to the plaintiff's age is also visible from the marathon of interlocutory applications filed. A counsel appearing for a litigant has to have institutional responsibility. The Code of Civil Procedure so command. Applications are not to be filed on the grounds which we have referred to hereinabove and that too in such a brazen and obtrusive manner. It is wholly reprehensible. The law does not countenance it and, if we permit ourselves to say so, the professional ethics decries such practice. It is because such acts are against the majesty of law."4
Dr.CSL, J CRP Nos.640 of 2016, 5323 & 2377 of 2015
5. On the same aspect, the learned counsel for the revision petitioners also relied upon the decision of the Hon'ble Supreme Court in a case between Bagai Construction vs. Gupta Building Material Store, reported in (2013) 14 Supreme Court Cases1, wherein dealing with an application filed under Order 18 Rule 17 Code of Civil Procedure regarding recall of witness, the Apex Court at para 15 of the order observed as follows :
"After change of various provisions by way of amendment in CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavor to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed those two applications before the trial court in order to overcome the lacunae in the plaint, pleadings and evidence. It is 5 Dr.CSL, J CRP Nos.640 of 2016, 5323 & 2377 of 2015 not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still the plaintiff has not placed those bills on record. It further shows that final arguments were heard on a number of times and the judgment was reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC."
6. Basing on the aforementioned decisions, the learned counsel for the revision petitioners stated that the respondent who is the plaintiff to the suit ought not to have filed those applications and the Court ought not to have entertained those applications, but the trial Court gave a chance to the respondent to produce further evidence, that too at the stage of arguments and receipt of documents at that stage is undesirable and, therefore, the impugned order has to be set aside.
6
Dr.CSL, J CRP Nos.640 of 2016, 5323 & 2377 of 2015
7. On the other hand the learned counsel for the respondent contended that earlier applications i.e., I.A.Nos.659 and 660 of 2014 were filed to recall Pw1 for rectification of a mistake that crept in during the course of description of certain documents in the deposition of Pw1 and, therefore, those applications were allowed. Learned counsel further submitted that Memorandum and Articles of Association, Certificate of incorporation and the copy of Board Resolution were, indeed, filed along with plaint, but they were not referred to in the Index of the plaint and, therefore, during the course of examining Pw1, those documents could not be marked. Learned counsel stated that when those documents were sought to be marked, by filing three applications i.e., I.A.Nos.126, 127 and 128 of 2015, the learned Judge of the trial Court allowed those applications and the said fact is reflected in the impugned order itself and, therefore, the contention of the learned counsel for the revision petitioners is unjustifiable. 7
Dr.CSL, J CRP Nos.640 of 2016, 5323 & 2377 of 2015
8. Further making a submission that when sufficient averments are found in the plaint itself regarding the documents and when the documents are available on file, entertaining the applications filed for marking of those documents is permissible, learned counsel for the respondent relied upon the decision of the Hon'be Supreme Court of India in a case between Marvari Relief Society vs. Amulya Kumar Singh, reported in (2019) 15 Supreme Court Cases 383, where in the Apex Court, at para 9 of the order observed as follows :
"Considering the averments made in the plaint, in our view the learned Single Judge was not right in observing that there are no averments made in the plaint in respect of the documents sought to be produced through the said applications. As pointed out earlier, there is clear reference to the documents viz. agreement dated 4-8-1982 and the notice issued by the appellant-plainitff on 19-8- 1987 to the respondent for payment of arrears and calling upon him for vacating the quarters. Though the cause-title of the plaint does not state that the appellant, Marwari Relief Society is represented through Ramnandan Prasad, however, the 8 Dr.CSL, J CRP Nos.640 of 2016, 5323 & 2377 of 2015 verification of the plaint clear states that Ramnadan Prasad is a "constituted agent and attorney of the plaintiff" which in our considered view is sufficient to hold that the plaint has been filed by the power-of-attorney holder who is a duly "constituted agent". The learned Single Judge fell in error in not keeping in view the averments made in the plaint and due verification of the plaint."
9. Admittedly, it is the duty of the party, who relies upon certain documents, to mention the details of those documents in the list annexed to the plaint. Further, it is the duty of the party, who intends to produce those documents as evidence, to get those documents marked through witnesses it produces during the course of trial. If the documents could not be produced or if the party fails to get the documents marked, immediately the party has to take steps for production of those documents and for getting those documents marked. There was failure on the part of the respondent herein to prosecute the matter diligently and the same is evident by the material available on record.
9
Dr.CSL, J CRP Nos.640 of 2016, 5323 & 2377 of 2015
10. However a perusal of the impugned order discloses the observation of the trial Court that documents sought to be received are available on record, but they were not reflected in index of list of the documents in the plaint. The observation of the trial Court in the impugned order in this regard as under:-
"No doubt, the respondent elicited the fact of non filing of documents sought be received in the evidence of Pw1, but the pleadings of the plaint clearly goes to shows that plaintiff is a registered company incorporated under the Companies Act vide registered No.6069 dt. 13-12-1985. In these, circumstances, certainly there would be Board Resolution authorizing any person to file any suit before the competent court. Perhaps this reason only, the suit was registered after verifying the documents sought be received in the file. The perusal of entire file goes to shows that the documents sought to be received are also found available, but the same were not reflected in the index of the list of documents in the plaint. In these circumstances, as the said documents are very much crucial for the petitioner to establish his case, more so, as the plaintiff cannot be denied to adduce some documentary evidence when the 10 Dr.CSL, J CRP Nos.640 of 2016, 5323 & 2377 of 2015 same is available in his possession and thereby, cannot be deprive his right, the contention of the respondent that the documents sought be received cannot be received in evidence at the fag end of the suit i.e., when the suit is posted for arguments in order to fill up the lacunas which were elicited in the case of the plaintiff cannot be accepted"
11. It is not the case of the revision petitioners that the respondent is introducing new set of facts that are different from that of the plaint averments. Also the documents sought to be marked which are on file, will not change the course of proceedings or the nature of the defence taken by the revision petitioner who is the defendant to the suit. Admittedly, the case has to be disposed of on merits and that too basing on the evidence produced by parties. When a mention of those documents is found in the plaint averments and when those documents were filed along with plaint, this Court is of the view that disallowing the application, for getting those documents marked would put the respondent herein to loss and injury. 11
Dr.CSL, J CRP Nos.640 of 2016, 5323 & 2377 of 2015
12. Therefore, this Court is of the view that the stand taken by the Principal Junior Civil Judge, Medchal in allowing those applications cannot be found fault. However, having regard to the negligent attitude adopted by the respondent in pursuing the matter, this Court is of the view that payment of Rs.1,000/- as ordered by the trial Court has to be increased to Rs.10,000/-. With the above observation, these revision petitions are disposed of.
13. Resultantly, all the three revision petitions are dismissed, confirming the order of the Principal Junior Civil Judge, Medchal in I.A.Nos.126, 127 and 128 of 2015 in O.S.No.620 of 2017, dated 30.09.2015, except to the extent of increasing the costs payable from Rs.1,000/- to Rs.10,000/-.
14. As a sequel, pending Miscellaneous Applications, if any, shall stand closed __________________________________ DR. CHILLAKUR SUMALATHA, J Date: 30.06.2022 Pssk