HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
C.R.P.No.272 of 2021
ORDER:
The petitioner herein had filed O.S.No.303 of 2015 before the
Principal Junior Civil Judge, Cum-Metropolitan Magistrate, Visakhapatnam
against the respondent herein for permanent injunction restraining the
respondent and his persons claiming through him or under him from
interfering with the peaceful possession and enjoyment of the suit
schedule property.
2. The claim of the petitioner was that the petitioner-Church,
which was started in the year 1804, had merged into the Church of South
India in the year 1948. The suit schedule property is said to have been
given to the petitioner by way of a gift/settlement deed dated 10.01.1984.
However, this document could not be marked during the chief-
examination of PW.1, as an objection was taken that the said document is
an unregistered document. Thereafter, the document was referred in
terms of Section 32 of the Indian Stamp Act and necessary stamp duty
and penalty have also been paid. By the time this process was completed,
the trial had been completed and the matter was coming up for
arguments. At that stage, the petitioner sought reopening of its evidence
for the purpose of marking the said document. This application was
dismissed, resulting in the petitioner approaching this Court by way of
revision petitions in C.R.P.Nos.6443 and 6478 of 2018.
3. On the orders of this Court in the above said revisions, PW.1
was examined again and the deed of settlement was marked as Ex.A.6.
The petitioner contends that both the attestors to this document had
passed away. However, the son of the 1st attestor requires to be 2 RRR,J C.R.P.No.272 of 2021
examined to prove the signature of the 1st attestor on the said deed. On
that basis, the petitioner moved an application in I.A.No.63 of 2021 for
reopening the evidence of the plaintiff for specific purpose of proving the
signature of the 1st attestor on Ex.A.6. This application was contested by
the respondent. After hearing both sides, the trial Court dismissed the said
application by order dated 18.02.2021. Aggrieved by the said order, the
petitioner has approached this Court by way of the present revision
petition.
4. The trial Court took the view that there was an inordinate
delay in filing the present application. The trial Court held that the
petitioners, while taking steps for examining PW.1 afresh, did not take any
steps to call either the attestors or to examine the son of the 1 st attestor
at any point of time and had moved this application, 15 months after
PW.1 had been examined in relation to the deed of settlement. The Trial
Court relying upon the judgment of the Hon'ble Supreme Court in Ram
Reati vs. Mange Ram (Died) through LRs and ors., Civil Appeal
No.1684 of 2016; and the judgments of this Court in Batchu Jagadish
Kumar vs. Mogili Venkataswamy (dided) and ors.,1; and Dhatla
Lakshmipathi Raju vs. P. Venkata Ramana and Anr.,2, held that the
unexplained delay in moving the application would non suit the petitioner
and dismissed the application.
5. Heard Sri K. Ajay Kumar, learned counsel representing on
behalf of Sri N. Ashwani Kumar, learned counsel for the petitioner and Sri
V.V. Siva Ram, learned counsel for the respondent.
1 2018 (5) ALT 284 2 2017 (4) ALT 386 3 RRR,J C.R.P.No.272 of 2021
6. While it cannot be disputed that there was a delay in filing of
the application by the petitioner, it must also to be considered that the
deed of settlement had been marked through the intervention of this
Court. The petitioner having been allowed to mark the deed of settlement
as Ex.A.6, should also be permitted to complete proving of the said
document by allowing either the attestors or the son of the 1st attestor to
give evidence in this regard.
7. In the circumstances, and in view of the peculiar facts of this
particular case, this civil revision petition is allowed and the trial Court
shall permit the reopening of the evidence of the plaintiff solely for the
purpose of examining the son of the 1st attestor in relation to the
signature of the 1st attestor on the deed of settlement. There shall be no
order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
_________________________ R. RAGHUNANDAN RAO, J.
____ March, 2022 Js.
4 RRR,J
C.R.P.No.272 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
C.R.P.No.272 of 2021
____ March, 2021
Js.
