Andhra Pradesh High Court - Amravati
Premal Pratap Joisher vs Vikram Jethalal Joisher on 4 March, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION Nos.355 & 356 of 2022
COMMON ORDER:
These two Civil Revision Petitions arise out of the orders dated 16.02.2022 passed by the learned II Additional District Judge, Hindupur, in I.A.No.49 of 2022 and I.A.No.51 of 2022 in O.S.No.19 of 2007.
2. Heard Mr. Avinash Desai, learned counsel for the petitioner assisted by Mr.D.Satya Siva Darshan, Advocate, and Mr.C.Hanumantha Rao for respondent Nos.1 to 5 in C.R.P.No.356 of 2022. Also heard Mr. C.V.Mohan Reddy, learned Senior Counsel representing Mr.P.Rama Krishna, Advocate, for respondent Nos.1 to 5 in C.R.P.No.355 of 2022.
3. The brief facts germane for consideration of the present controversy, may briefly be stated thus:
The respondent Nos.1 to 5 herein filed O.S.No.19 of 2007 on the file of the Court of II Additional District Judge, Hindhupur, against the petitioner herein, and respondent Nos.6 to 15 for grant of a decree declaring their right and title in respect of plaint schedule properties, consequential injunction and delivery of possession through Court, in the event of the Court coming to a conclusion that the defendants are in possession of the suit properties.2
NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022
4. The petitioner herein, who is defendant No.3 in the above mentioned suit, filed written statement raising several contentions. It is, inter alia, pleaded that the findings in the earlier suit O.S.No.7 of 1996 on the file of the Court of Senior Civil Judge, Penukonda, which was filed for perpetual injunction operates as 'res judicata' between the parties and suit O.S.No.19 of 2007 is also hit by the provisions of Order II Rule 1 and 2 of Code of Civil Procedure (for short 'C.P.C.').
5. The Trial Court framed relevant issues and evidence was adduced by the respective parties. When the suit was coming for arguments, the petitioner herein/ defendant No.3, who was examined as D.W.2 filed the above said application i.e., I.A.No.49 of 2022 under Order 18, Rule 17 and Section 151 of C.P.C. to recall him for the purpose of marking certified copy of written statement of defendants Nos.1 and 2 filed in O.S.No.7 of 1996 on the file the Court of Senior Civil Judge, Penukonda. I.A.No.51 of 2022 is filed under Order 8 Rule 1-A and Section 151 of C.P.C., to grant leave to produce certified copy of written statement of defendant Nos.1 and 2 in the said suit. The respondent Nos.1 to 5/plaintiffs filed counter and opposed the said applications. On dismissal of the same, the petitioner preferred the present Civil Revision Petitions.
6. Learned counsel for the petitioner while contending that the order of the learned Trial Court is erroneous and unsustainable, submitted that defendant Nos.1 and 2 in O.S.No.19 of 2007, filed a written statement and petitioner herein/defendant No.3 filed a 3 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 separate written statement and to substantiate their plea of 'res judicata' etc., the written statement in O.S.No.7 of 1996 of the defendant No.1 and defendant No.2 in the said suit were filed along with the documents in O.S.No.19 of 2007. However, as it was noticed that the said written statement of defendant Nos.1 and 2 filed in O.S.No.7 of 1996 was not marked, he submits that the applications referred to above were filed. He submitted that the mistake occurred inadvertently as several documents were marked on behalf of the defendants. He further submitted that a certified copy of the written statement of defendant Nos.1 and 2 in O.S.No.7 of 1996 was obtained on 11.02.2022 and immediately on 12.02.2022, the above I.As., were filed. It is his submission that the said written statement in O.S.No.7 of 1996 is very essential to substantiate the case of the defendants that the present suit O.S.No.19 of 2007 is barred by 'res judicata', that an issue is framed in this regard and an additional issue with regard to applicability of Order II Rule 2 was also framed and therefore, the written statement in O.S.No.7 of 1996 would assist the Court in the adjudicating the issues effectively. He submitted that the learned Trial Court, however, went wrong in dismissing the applications on the premise that as the judgment in O.S.No.7 of 1996 which was marked as Ex.A6 would contain the gist of written statement, there is no necessity to mark the written statement filed by the defendant Nos.1 and 2 in the said suit separately. He would further contend that merely because the gist of the written statement was extracted in the judgment passed in O.S.No.7 of 1996, it would 4 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 not amount to marking the written statement as evidence in O.S.No.19 of 2007. He submitted that the view taken by the learned Trial Court that the applications filed by the petitioner are not maintainable is also not correct. He submitted that no prejudice would be caused, if the said document is marked by recalling the petitioner and it would hardly take any time for the said purpose. Making above said submissions, the learned counsel prays to allow the revision petitions, by setting aside the orders of learned Trial Court.
7. While opposing the said submissions, learned counsel for the respondents 1 to 5/plaintiffs vehemently contended that there are no bonafides in the applications filed by the petitioner. It is submitted that the petitioner was having ample time and opportunity to exhibit the relevant documents at the time of adducing evidence on behalf of the defendants, but failed to avail the same and therefore, he cannot be allowed to mark the documents, at this stage, more particularly, when the matter is posted for arguments. Stating that the petitioner is resorting to dilatory tactics and his conduct is fraudulent, the attention of this Court is drawn to the earlier orders passed in C.R.P.No.1266 of 2021, dated 7.12.2021 and C.R.P.No.143 of 2022 dated 28.01.2022, and it is contended that the intention of the petitioner is to protract the litigation though time schedule is fixed, while disposing of the above mentioned C.R.Ps. The learned counsel further submitted that, in fact against the orders passed in C.R.P.No.1266 of 2021, the respondents/plaintiffs carried the matter 5 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 to the Hon'ble Supreme Court and vide orders dated 10.01.2022 in Special Leave to Appeal (C)No.19856 of 2021, the Hon'ble Apex Court directed the Trial Court to decide the suit which is pending since 2007 by the end of March, 2022. It is his submission that despite the above stated position, the petitioner is resorting to delaying tactics and the same cannot be countenanced.
8. While supporting the orders under revision, it is further submitted that as rightly held by the learned Trial Court, the applications are not maintainable. It is argued that the opinion of the learned Judge that marking of written statement separately is not necessary since the gist of the written statement would be available in the Judgment in O.S.No.7 of 1996, cannot be viewed as perverse. Referring to the judgment of the Hon'ble Supreme Court in S.Nazeer Ahmed v. State Bank of Mysore and Others1, it is contended that the plea of 'res judicata' can be examined with reference to the plaint itself and marking of written statement as sought for is not warranted. The learned counsel also submitted that as a copy of the written statement filed by the defendants is available on record, instead of marking the certified copy by recalling the witness, this Court may provide for perusal of the same by the Trial Court, while adjudicating the matter. While stating that the evidence on the defendants' side was closed and the matter is coming up for arguments, it is also submitted that no petition to reopen the matter 1 AIR 2007 SC 989 6 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 for adducing evidence is filed and in the absence of the same, the application to recall the petitioner is not maintainable. The learned counsel would further submit that the petitioner/defendants did not adhere to the time schedule and their conduct disentitles them from securing any relief from this Court. It is also submitted that in I.A.No.31 of 2022 filed by the petitioner/defendant, for framing additional issue as to whether suit or any part thereof is barred by Order II Rule 2 of C.P.C., it was stated on his behalf that no evidence need be adduced as it is only a question of Law, made the Court to believe the same and got the said I.A. ordered. However, the petitioner/defendant No.3 came up with the present application for adducing evidence contrary to the earlier stand/submission and this conduct of the petitioner cannot be countenanced and has to be disapproved. Contending that the orders passed by the learned Trial Court are valid and no interference is called for the counsel for the respondent Nos.1 to 5/plaintiffs seeks dismissal of the present C.R.Ps., as the same are devoid of merits.
9. The learned counsel for the petitioner, in reply, submitted that the I.As were filed before closing of evidence and therefore, there is no occasion for the petitioner to file a separate application to reopen the evidence. While denying the various contentions that the petitioner is resorting to delaying tactics etc., he also submitted that the matter is posted for arguments of defendants on 26.02.2022 and on that day the petitioner/D.W.2 would be present for marking the 7 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 document which would not take much time and urges that the I.As., be allowed, by setting aside the orders under revision. In support of the contentions advanced, he also placed reliance on the judgment of the Hon'ble Supreme Court in K.K.Velusamy v. N.Palanisamy2
10. This Court has considered the matter with reference to the material on record. Though, elaborate submissions were made by the respective counsel, the point that falls for adjudication is :
Whether the learned Trial Court is right in rejecting the applications filed by the petitioner, if not so, the orders under Revision are liable to be interfered with by this Court in exercise of its powers under Article 227 of the Constitution of India?
11. At the outset, it is to be noted that even as per the respondents/plaintiffs, in the written statement of the petitioner herein/defendant No.3 as well as written statement of defendant Nos.1 and 3 in O.S.No.19 of 2007, pleas of res judicata and bar under Order II Rule 2 of C.P.C., were raised. The learned Trial Court also framed issues in that regard. Despite the above said admitted position, the learned Trial Court opined that there is no necessity to mark written statement in O.S.No.7 of 1996, as the gist of the said written statement would be mentioned in the judgment in O.S.No.7 of 1996. Such a view, in the considered opinion of this Court, is not tenable. To substantiate the plea of res judicata and application of Order II Rule 2, the petitioner/defendants would be required to refer 2 (2011) 11 SCC 275 8 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 to the specific averments/pleas taken in the earlier suit. Mere reference to gist of written statement in the earlier suit would not suffice and for effective adjudication of the issues, the Trial Court, perhaps would require to consider the written statement, in its entirety. Therefore, the reasoning of the learned Trial Court is not sustainable.
12. Though the learned counsel for the respondents/plaintiffs with reference to the judgment in S.Nazeer Ahmed's case cited supra, submitted that the plaint itself is sufficient to adjudicate the issues of 'res judicata' etc., this Court is unable to accept the said submission in view of the conclusion arrived at supra. Further, in the said case, the appellant/defendant who raised the plea that the suit was hit by Order II, Rule 2 of C.P.C., had not produced plaint in the earlier suit to show what exactly was the cause of action. Referring to the Constitution Bench Judgment of the Apex Court in Gurbux Singh v. Bhooralal3 and Bengal Waterproof Limited v. Bombay Waterproof Manufacturing Co. and another4 , the Hon'ble Court opined that "production of pleadings is a must". In the present case, only the plaint is marked and it is axiomatic that pleadings include plaint and written statement. Hence, the submission of the learned counsel for the respondents/plaintiffs is rejected. 3 (1964) 7 SCR 831 4 (1966) Supp 8 SCR 695 9 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022
13. With reference to the contention that the petitioner has not filed an application to reopen the evidence, the material on record would go to show that the I.As., in question were filed on 14.02.2022, whereas the defendants evidence was closed on 16.02.2022. Therefore, this Court finds merit in the submission made by the learned counsel for the petitioner in this regard and the same is upheld. Though, a contention is advanced by the learned counsel for the respondents/plaintiffs that the application to recall under Order 18 Rule 17 is not maintainable, a perusal of the petition would go to show that the same is filed under Order 18 Rule 17 and Section 151 of C.P.C., and therefore, the Trial Court in exercise of its inherent power under Section 151 of C.P.C., can recall a witness for examination and allow marking of document, as prayed for.
14. In K.K.Velusamy's case referred to supra, the Hon'ble Supreme Court while dealing with the discretionary power of Court under Section 151 of C.P.C., and Order 18, and Order 18, Rule 17-A (after their deletion) inter alia, held that the Court in appropriate cases can exercise its discretion to permit reopening of evidence and/or recalling of witnesses for further examination/cross- examination after evidence led by parties is concluded and arguments have commenced or even when arguments have concluded and the case has been reserved for judgment, as there is no provision in this regard in C.P.C., after deletion of Order 18 Rule 17-A. The Hon'ble Supreme Court while rejecting contention that Section 151 of C.P.C., 10 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 cannot be used for reopening evidence or for recalling witnesses, also opined that the contention that no application should be entertained once the Trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straightjacket formula. In Paras 15 and 19, the Hon'ble Supreme Court held as follows:
"15. The learned counsel for the respondent contended that once arguments are commenced, there could be no reopening of evidence or recalling of any witness. This contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extraordinary circumstances, to meet the ends of justice and to prevent abuse of process of court, subject to the limitation recognised with reference to exercise of power under Section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments.11
NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022
16. Neither the trial court nor the High Court considered the question whether it was a fit case for exercise of discretion under Section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings.
17. The appellant-defendant has taken a consistent stand in his reply notice, written statement and evidence that the agreement of sale was executed to secure a loan of ₹1,50,000, as the respondent insisted upon execution and registration of such agreement. If after the completion of recording of evidence, P.W.1 and P.W.2 had admitted during conversations that the amount paid was not advance towards sale price, but only a loan and the agreement of sale was obtained to secure the loan, that would be material evidence which came into existence subsequent to the recording of the depositions, having a bearing on the decision and will also clarify the evidence already led on the issued.
18. According to the appellant, the said evidence came into existence only on 27-10-2008 and 31-10-2008, and he prepared the applications and filed them at the earliest, that is, on 11-11-2008. As the defendant could not have produced this material earlier and if the said evidence, if found valid and admissible, would assist the court to consider the evidence in the 12 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 correct perspective or to render justice, it was a fit case for exercising the discretion under Section 151 of the Code. The courts below have not applied their minds to the question whether such evidence will be relevant and whether the ends of justice require permission to let in such evidence. Therefore the order calls for interference.
19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bonafide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs."
15. In the judgment of Sultan Saleh Bin Omer v. Vijayachand Sirimal5, a learned Judge of erstwhile High Court of Andhra Pradesh, 5 AIR 1966 AP 295 13 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 inter alia, held that if the circumstances warrant, an opportunity to a party to recall a witness for examination, cross-examination and re- examination can be granted by a Court in exercise of its' inherent jurisdiction under Section 151 of C.P.C. In para 17 of the judgment, the learned Judge opined as follows:
"17. A combined reading of all these provisions makes it abundantly clear that the Code has not provided for hearing of arguments as a distinct stage in the trial of the suit. On the other hand, according to Or.15 Rule 3, the hearing of the suit includes both production of evidence, as well as argument. It is in the option of the parties to argue their case after the evidence in the suit is closed, and it is for them to decide whether they will exercise their privilege or not. In other words, once the trial of the suit is taken up and the examination of the witnesses has commenced, the hearing of the suit is said to begin, and that hearing comes to an end only with the delivery of the judgment, or when the suit is posted for judgment where it is reserved. In cases, therefore, where the suit has not been posted for judgment, but is posted for hearing arguments of one side or the other, it should be remembered that the hearing of the suit is not concluded, though the recording of evidence might have been finished by both the parties. In such cases, either party is not precluded from making a request for examination of additional witnesses, or marking documents, merely on the ground that the trial is closed and the matter is posted for arguments. Whether the request should be granted or not, is however a matter 14 NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 to be decided on its merits, bearing in mind the fact that it is belated."
16. In view of the above legal position, the view of the learned Trial Court that the applications are not maintainable, cannot be approved.
17. In the present case, the document sought to be marked by recalling the witness/petitioner is a certified copy of the written statement filed by the defendant Nos.1 and 2 in O.S.No.7 of 1996. Marking of a certified copy of the same, in the considered opinion of this Court would certainly assist the Trial Court in adjudicating the relevant issues viz., res judicata and application of Order II Rule 2 of C.P.C., and no prejudice would be caused to the respondents/plaintiffs since production/marking of the written statement in no way alter the stand of the defendants already taken in the present suit O.S.No.19 of 2007. It is no doubt true that as seen from the order in I.A.No.31 of 2022, it was stated that the petitioner/defendant No.3 don't want to adduce any evidence with regard to plea that the suit is barred by Order II, Rule 2 C.P.C., on the premise that it is a question of law. But the learned counsel for the petitioner clarified that the statement was made in the context of the said I.A., under the impression that relevant evidence is marked. However, it was later noticed that the same was not marked and therefore, I.A.No.49 of 2022 was filed. This Court finds justification in the submission made by the learned counsel for the petitioner. 15
NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 Accordingly, the contentions contra and the plea that the application is without bonafide are rejected.
18. Though the learned counsel for the respondent Nos.1 to 5/plaintiffs contended that the applications are filed only with a view to delay the proceedings, this Court is not in agreement with the same as the marking of a document, which is a written statement filed in the earlier litigation between the parties would not take much time. Further, the Trial Court has rejected the I.As., inter alia, holding that the applications are not maintainable and that the gist of the written statement will be mentioned in the judgment, but not on any other ground. In the light of the conclusions arrived at supra, this Court is of the view that marking of the document by recalling the petitioner would not come in the way of disposal of the suit within the time limit as per the order of the Hon'ble Apex Court dated 10.01.2022. Further, the reason for not marking the document at the relevant time cannot be considered as wilful or with a view to protract the litigation. It is not as if the said document is readily available with the petitioner. A certified copy is obtained from the concerned Court. The learned counsel for the petitioner also submitted that except marking the document, no arguments would be addressed on behalf of the petitioner/defendant. Under the said circumstances, this Court deems it appropriate to allow the prayer to receive the same, as it would assist the Court in rendering justice.
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NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022
19. In the afore stated view of the matter and the conclusions arrived at supra, this Court is inclined to set aside the impugned orders under revision in exercise of powers under Article 227 of the Constitution of India.
20. Accordingly, both the Civil Revision Petitions are allowed and the impugned orders dated 16.02.2022 are set aside. I.A.No.49 of 2022 and 51 of 2022 are allowed with costs of Rs.10,000/- payable to the respondent Nos.1 to 5/plaintiffs. As it is stated that the matter now stands posted to 05.03.2022 for reply arguments of the plaintiffs, if any, the petitioner/D.W.2 shall pay the costs and make himself available on the said date for marking the document i.e., written statement of D1 and D2 in O.S.No.7 of 1996 on the file of the Court of Senior Civil Judge, Penugonda, subject to its proof and relevancy. Cross examination, if any shall be conducted on the same day. Placing the submission of the learned counsel for the petitioner on record that except marking of the document, no arguments would be advanced, it is made clear that after marking of the document as provided herein above, the learned Trial Court would proceed with hearing of arguments on plaintiffs' side, as scheduled. In the event, the petitioner/D.W.2 fails to attend before the Court on the date mentioned above or fails to pay the costs, the learned Trial Court would proceed with further hearing of the matter on plaintiffs' side, treating the evidence of the D.W.2 as closed.
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NJS,J Common Order in C.R.P.Nos.355 & 356 of 2022 Consequently, miscellaneous applications pending, if any, shall stand closed.
_____________________
NINALA JAYASURYA, J
Date: .03.2022
Note: Furnish C.C.today.
B/o.
BLV
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NJS,J
Common Order in
C.R.P.Nos.355 & 356 of 2022
HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION Nos.355 & 356 of 2022 Date: .03.2022 Note: Furnish C.C.today.
B/o.
BLV