Andhra Pradesh High Court - Amravati
Gonela Subrahmanyam, vs Somu Kesava Ramam, on 1 November, 2022
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
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
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.
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.
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
AIR 1973 AP 309
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.
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
