K. Baleeswara Reddy vs P. Renuka Devi
2022 Latest Caselaw 8263 AP

         THE HON'BLE Ms. JUSTICE B. S. BHANUMATHI


            Civil Revision Petition No.1256 of 2021

ORDER:

This revision petition, under Article 227 of the Constitution of

India, is preferred against the order, dated 28.10.2021, dismissing

I.A.No.116 of 2021 in I.A.No.93 of 2021 in O.S.No.32 of 2018 on

the file of the Court of Senior Civil Judge, Nandikotkur, filed under

Order VIII Rule 1A (3) read with Section 151 CPC by the petitioner/

defendant No.1 to condone delay in filing the petition schedule

documents and receive the said documents in evidence for the

purpose of marking on his behalf.

2. Heard Sri K. Naga Phanindra, learned counsel representing

Sri K. Rathanga Pani Reddy, learned counsel for the revision

petitioner/1st defendant. There is no representation for respondents

1 to 3/plaintiffs. Though notice was served on respondent No.4/2nd

defendant, no appearance is made. Respondent Nos.5 & 6 are

shown as not necessary parties to this revision.

3. The facts, in brief, are that the respondents/plaintiffs filed the

present suit against the revision petitioner/1st defendant and others

for cancelation of sale deeds executed by the defendant No.3 in

favour of defendants 1 & 2 and for permanent injunction. The

plaintiffs have no share in the plaint schedule properties. They filed

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I.A.No.93 of 2021 seeking ad-injunction restraining the defendant

Nos. 1 & 2 from alienating the schedule properties in favour of third

party. The revision petitioner/1st defendant filed counter opposing

the said petition. At the time of filing the counter, the 1st defendant

could not file any documents, due to non availability of the certified

copies. When the suit is posted for orders in the interlocutory

application, the 1st defendant, having obtained certified copies of

the relevant documents with regard to the plaint schedule property,

came up with the present interlocutory application to receive the

documents. The said documents are essential in order to prove his

case and non-filing of the certified copies at the earliest point of

time is neither intentional nor deliberate.

(b) The documents sought to be received through the present

interlocutory application are:

1. Certified copy of order, dt.19.07.2010 in E.A.No.152 of 2008 in E.P.No.33 of 2007 in O.S.No.26 of 2006 on the file of the Court of Senior Civil Judge, Nandikotkur.

2. Certified copy of order and decretal order, dt.17.07.2014, in A.S.No.53 of 2010 on the file of the Court of I Additional District Judge, Kurnool.

3. Certified copy of order and decretal order, dt.19.01.2018 in I.A.No.249 of 2015 in I.A.No.116 of 2014 in O.S.No.37 of 2008 on the fie of the Court of Senior Civil Judge, Nandikotkur.'

4. The respondents/plaintiffs 1 to 3 filed counter opposing the

petition. They contend that all the petition listed documents are

unnecessary for deciding the case. I.A.No.93 of 2021 was filed

BSB, J C.R.P.No.1256 of 2021

praying for interim injunction not to alienate the schedule properties

in favour of third parties till delivery of the final judgment in the

suit. The plaintiffs have no objection to give an undertaking that

they will not alienate the properties till the final judgment is

delivered. The defendants 1 & 2 have bad intention and while

pending the suit, they are trying to create documents. The matter

is coming up for hearing I.A.No.93 of 2021 only. The trial in the suit

has not yet commenced. There is no proper explanation for the

delay and how the proposed documents are relevant for deciding

I.A.No.93 of 2021. There are no bona fides to reopen the matter.

The petition is liable to be dismissed.

5. On merits, the trial Court dismissed the petition holding that

there are no good grounds for condoning the delay for not filing the

certified copies of the documents which are obtained much prior to

filing of counter and that without proper reasons, delay cannot be

condoned.

6. Aggrieved by the aforesaid order, the revision petitioner/1 st

defendant had preferred this revision petition. It is contended on

behalf of the revision petitioner that the trial Court ought to have

seen that the petitioner already filed photostat copies of the

documents along with the written statement and that now, he only

intends to substitute the photostat copies with the certified copies of

BSB, J C.R.P.No.1256 of 2021

the documents and he is not filing any new documents. Due to

Covid-19 pandemic, certain documents could not be obtained and

filed earlier and they were obtained only on 21.08.2021. Even if the

documents are received, no prejudice is caused to the other side,

and therefore, the order of the trial Court is contrary to law.

7. In this case, the revision petitioner filed two petitions, viz.,

I.A.No.116 of 2021 and the other application in I.A.No.123 of 2021,

both of which are for the relief of receiving the documents filed

along with the petitions. Both the petitions were disposed of, at the

same time. I.A.No.123 of 2021 was allowed since reason stated

therein was convincing to the trial Court regarding the fact that the

document proposed to be filed along with the petition was obtained

recently before filing of the said petition, whereas the same reason

is found to be not true in respect of the documents filed along with

I.A.No.116 of 2021, since the proposed documents were obtained

long prior to filing of the petition. However, one factor to be noticed

is that existence of those documents was already referred to in the

written statement under a crucial defence taken and moreover,

their photostat copies were already said to have been filed along

with the written statement. The only thing is reason stated for the

delay in filing the documents is found to be not true and convincing.

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The plaintiff filed suit contending that their father G.Sangem Reddy

purchased the suit schedule properties out of amount of

compensation paid when ancestral properties were acquired and as

the father and brothers of the plaintiffs who addicted to vices

refused to partition the joint family properties, the plaintiffs herein

filed suit O.S.No.37 of 2008 on the file of the Court of Principal

Senior Civil Judge, Nandikotkur, for partition and when they are

about to take possession of their share of properties allotted in the

final decree in I.A.No.116 of 2014, defendants 1 & 2 played fraud in

collusion with defendant No.3 and also father and brother of the

plaintiffs and obtained registered sale deeds,dt.19.03.2018 to

defeat the share of the plaintiffs. Hence they filed this suit for

declaration that these sale deeds are null and void and not binding

on them to the extent of their share of 3/5th part. The 1st defendant

filed written statement denying collusion and pleaded that the

partition suit O.S.No.37 of 2008 was got filed by G.Sangem Reddy

collusively through his daughters when the suit schedule properties

were brought for sale in E.P.No.33 of 2001 on the file of the same

Court, without impleading the creditors of G.Sangem Reddy and

obtained decree and so it is not binding on the defendants herein.

It is also denied that these properties are joint family properties and

stated that this aspect was declined in order dt.19.07.2010

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dismissing the claim petition in E.A.No.152 of 2008 filed by the

plaintiffs in E.P.No.33 of 2001 in O.S.No.126 of 2006 on the file of

the same Court, which is a suit filed by defendant No.1 herein

against G. Sangem Reddy and the said order was confirmed in

A.S.No.53 of 2010 on the file of the Court of I Additional District

Judge, Kurnool. It is further pleaded that the plaintiffs are fully

aware of I.P proceedings in I.A.No.12 of 2007 filed by debtors and

moreover, G.Sangem Reddy got filed I.A.No.7 of 2010 in I.A.No.12

of 2007 through plaintiffs claiming share in the properties and it

was dismissed on 22.11.2011. That apart, after sale by the Official

Receiver (defendant No.3), the plaintiffs filed I.A.No.249 of 2015 in

I.A.No.116 of 2014 in O.S.No.37 of 2008 to implead the Official

Receiver as respondent No.3 in I.A.No.116 of 2014, i.e., the final

decree petition in the suit filed by them for partition. These three

documents are shown in the list of documents at Sl.Nos.1, 2 & 4 in

the written statement. As the documents are material to adjudicate

the dispute on merits and their photostat copies were already

referred in the written statement and filed, just on the ground of

failure to offer just reasons for the delay in filing the documents, it

is not proper to shut the doors. On the other hand, while allowing

the petitioner to file the documents, some terms can be imposed for

the lapses on the part of the petitioner for not being prompt in filing

them earlier. Therefore, this Court is of the view that the trial Court

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erred in dismissing the petition without giving proper opportunity to

the petitioner and deciding the matter in issue on merits.

8. Accordingly, the Civil Revision Petition is allowed setting aside

the order, dated 28.10.2021, passed in I.A.No.116 of 2021 in

I.A.No.93 of 2021 in O.S.No.32 of 2018 and I.A.No.116 of 2021 is

allowed, on condition that the petitioner shall pay the respondents 1

to 3/plaintiffs, a sum of Rs.1,000/- as costs, on or before

15.11.2022, failing which the petition shall automatically stand

dismissed without further reference to this Court.

Pending miscellaneous petitions, if any, shall stand closed.

____________________ B. S. BHANUMATHI, J

02-11-2022 RAR