HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.1355 of 2022
Between:
Gonela Subrahmanyam, S/o Venkataratnam,
Hindu, aged 67 years, Business, D.No.64-37-12,
Ratnampeta, Rajamahendravaram.
... Petitioner/Plaintiff.
Versus
Somu Kesava Ramam, S/o late Veerraju, Hindu,
aged 51 years, Business, Diwancheruvu village,
Rajanagaram Mandal, E.G. District and 4
others.
... Respondents / Defendants.
Counsel for the petitioner : Sri K.Siva Ramakrishna
Counsel for 5th respondent : Sri Bathula Raj Kiran
ORDER
Plaintiff in the suit filed the above revision challenging the order dated 13.06.2022 in I.A.No.268 of 2022 in O.S.No.641 of 2015 on the file of Principal Senior Civil Judge, Rajamahendravaram.
2. Plaintiff filed the suit O.S.No.641 of 2015 against the respondents/defendants for permanent injunction.
3. In the plaint, it was contended interalia that plaintiff purchased the suit schedule property in Court auction in 2 E.P.No.91 of 2010 in O.S.No.133 of 2004 on the file of Principal Senior Civil Judge, Rajahmundry on 29.06.2011 for a consideration of Rs.3,22,100/-; that original sale deed dated 01.05.1940 was handed over to the plaintiff, so also pattadar pass book and title deed; that plaintiff was put in possession of the property and since then he has been in possession and enjoyment of the property; that since one month, defendants are trying to interfere with the possession of the plaintiff; that 5th defendant filed claim petition on the file of Principal Senior Civil Judge, Rajahmundry and the plaintiff is contesting the same and hence, filed the suit. Suit schedule property is an extent of Ac.3.50 cents, out of Ac.8.48 cents.
4. 5th Defendant filed written statement and contesting the suit. Defendants 1 to 4 remained exparte.
5. In the written statement, 5th defendant contended interalia that he filed claim petition in E.P.N.91 of 2010 and the same is pending enquiry; that 5th defendant filed title deeds in the claim petition; that he purchased the property from the judgment debtor under a registered sale deed and he is in possession of the plaint schedule property; that plaintiff approached the Court by suppressing the facts; that no notice 3 was served to 5th defendant in execution proceedings and in fact, the judgment debtor is aware that the property was already alienated to 5th defendant long back and the property was not delivered to the plaintiff, though he was the auction purchaser in E.P.No.91 of 2010; that several irregularities were taken place in execution proceedings and eventually, prayed the Court to dismiss the suit.
6. Trial of the suit was commenced. After completion of examination of plaintiff, the plaintiff filed I.A.No.268 of 2022 under Order XVI Rules 5 and 6 and Section 151 of CPC to issue summons to P.S.V.V.S.S.V.Prasad, Retired Amin to give evidence in the suit.
7. In the affidavit filed in support of the petition, it was contended that in the execution of decree in O.S.No.133 of 2004, petitioner participated in auction and became the highest bidder and the property was delivered to him by the Amin on 05.02.2012 and delivery report was filed into the Court. Since the respondent is disputing the same, he is advised to summon the said Amin to examine him on his behalf.
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8. 5th respondent filed counter and opposed the application. In the counter, it was contended that the property was never handed over to the petitioner and the endorsement in the Amin report is not true and correct; that the property is in possession of 5th respondent; that Amin report is part and parcel of Court record and there is no necessity to summon the Amin and prayed to dismiss the petition.
9. By order dated 13.06.2022 the Court below, dismissed the application. Aggrieved by the same, the present revision is filed.
10. Sri K.Siva Rama Krishna learned counsel for revision petitioner would submit that since the 5th defendant disputed delivery of property, examination of Amin is necessitated to prove the delivery report since the petitioner purchased the property in Court auction. He also would submit that mere marking of Amin's report may not serve the purpose, in view of serious dispute raised by 5th defendant.
11. Sri Bathula Raj Kiran, learned counsel for 5th respondent supported the order of the Court below.
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12. Suit O.S.No.641 of 2015 was filed seeking injunction. Plaintiff asserted that he participated in auction in E.P.No.91 of 2010 in O.S.No.133 of 2004 and the Amin delivered the property on 05.02.2012 and filed report into the Court. Since the date of delivery, he has been in possession of the property. However, 5th defendant in the suit claimed that he purchased the property from the judgment debtor and he is in possession of the property. 5th Defendant also disputed the Amin report and endorsement of delivery. Since 5th defendant disputed delivery and Amin report, though delivery report is part of the Court record, examination of Amin is necessary to prove the report and delivery of property.
13. Mere marking of document or report by the Court cannot be held to be proof of its contents. The report has to be proved by examining the Amin in view of the serious dispute regarding delivery of the property.
14. In Gopala Krishna Murthy Vs. B. Ramachander Rao and Ors.1, it was observed that the Court may not refuse to order an application under Order XVI Rule 1 of CPC on the 1 AIR 1973 AP 309 6 ground that the evidence, if produced, may not be of any help to the applicant.
15. The observation of the Court below that, but for mere marking the document, there is no need to summon the Amin to give evidence on the delivery report, in the considered opinion of this Court is unwarranted. In fact, Court may presume existence of certain facts under Section 114 of the Indian Evidence Act.
16. Section 114 (e) of the Indian Evidence Act reads thus:
The Court may presume
(a) ...
(b) ...
(c) ...
(d) ...
(e) that judicial and official acts have been regularly performed.
17. In view of the presumption, since Amin delivered the property and filed report, the Court can draw a presumption about delivery. However, in view of serious dispute regarding the delivery of property, examination of Amin, in the facts of the case, is very much necessary to adjudicate the dispute between the parties.
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18. Since the Court below failed to exercise the judicial discretion vested with it, this Court exercising its jurisdiction under Article 227 of the Constitution of India. The order passed by the Court below I.A.No.268 of 2022 in O.S.No.641 of 2015 on the file of Principal Senior Civil Judge, Rajamahendravaram, is set aside. I.A.No.268 of 2022 is allowed. Trial Court shall issue summons to Sri P.S.V.V.S.S.V.Prasad, Retired Amin, who delivered property to the plaintiff in execution of decree in E.P.No.91 of 2010 in O.S.No.133 of 2004 to examine him as witness.
19. Accordingly, the civil revision petition is allowed. No costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 1st November, 2022 PVD