Gajula Sobha Rani, vs Sunilreddy Satya Venkata ...
2022 Latest Caselaw 8401 AP

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

            CIVIL REVISION PETITION No.525 of 2022

   Between:

   Gajula Sobha Rani, W/o late Vivekananda,
   Hindu, aged 65 years, residing at 4-72-14,
   Lawson's Bay Colony, Visakhapatnam.

                                                    ... Petitioner.
               Versus

   Sunilreddy Satya Venkata Sivarama Krishna,
   S/o late SSVS Ramayya, aged 59 years,
   Professor, Andhra University, R/o G-3,
   Niharika Enclave, Abid Nagar, Akkayyapalem,
   Visakhapatnam and two others.
                                            ... Respondents.


Counsel for the petitioner             : Sri T.Sreedhar
Counsel for respondents                : M/s Philix Law Firm

                              ORDER

Plaintiff in the suit filed the above revision against the

order dated 22.02.2022 in I.A.No.54 of 2022 in O.S.No.961 of

2015 on the file of I Additional Senior Civil Judge,

Visakhapatnam.

2. Plaintiff filed suit O.S.No.961 of 2015 against the

respondents/defendants for permanent injunction.

3. (a) Plaintiff pleaded in the plaint that she is the

absolute owner of plaint schedule property; that Mosalikanti

people filed SR No.15(1)174/VSP before the Assistant

Settlement Officer, Anakapalli and the said claim was

disallowed; that prior to 30.09.1958, plaintiff has been in

peaceful possession and enjoyment of the schedule property

and its appurtenant property; that during the lifetime of

plaintiff's husband, he filed LGC No.43 of 2000 before the

Special Court, wherein commissioner was appointed and it

was established that S.No.51/1, Ac.1.86 cents and other

lands are in possession of the plaintiff and her husband; that

plaintiff constructed asbestos roofing shed in the plaint

schedule property and the same was completely damaged due

to Hud Hud cyclone and phonographs and CD were

submitted; that defendants are nothing to do with the

schedule property and defendants with the assistance of their

henchmen came to the schedule property on 11.07.2015 and

12.07.2015 and tried to trespass into the schedule property

and hence, filed the suit for injunction.

(b) The plaint schedule property is described as 650

square yards of vacant house site in S.No.51/1. Boundaries

of the property shown in the plaint are -

            EAST        : Property of Plaintiff.
            SOUTH       : Machinery, compound wall.
            WEST        : Road.
            NORTH       : Vacant Land of plaintiff.

4. Defendants filed written statement and are contesting

the suit.

5. Pending the suit, when the suit is coming for

arguments, I.A.No.54 of 2022 was filed under Order VII Rule

14(3) r/w Section 151 of CPC to receive document filed along

with petition. I.A.No.53 of 2022 was filed under Order XVIII

Rule 17 r/w Section 151 of CPC to recall P.W.1 for the

purpose of marking documents. I.A.No.52 of 2022 was filed

under Order Section 151 of CPC to reopen the suit for the

purpose of recalling P.W.1

6. In the affidavit filed in support of I.A.No.54 of 2022, it

was contended interalia that one M.Satyanarayana, Advocate,

who prosecuted the case on behalf of plaintiff died due to ill-

health in the year 2019 and later, the matter was entrusted

to P.V.N.Reddy Naidu, Advocate; that while verifying the

record, plaintiff came to know that D.W.1 was not cross

examined by the earlier advocate and the cross examination

of D.W.1 was treated as nil; that interlocutory application

was filed to recall D.W.1 and the same was allowed and while

cross examining D.W.1, photographs of schedule property

and other adjacent properties were shown; that D.W.1

admitted some photographs and the same were marked as

Exs.A-5 to A-9; that D.W.1 gave evasive replies in respect of

some other photographs, which go to the root of the matter

and hence, the application is filed to receive the remaining

photographs, power bills and license to prove the fact that

restaurant is being run in the plaint schedule property and

other adjacent property.

7. Counter was filed by respondents opposing the

application. It was contended interalia that no plea was

raised in the plaint regarding running of restaurant by the

plaintiff in the schedule property; that plant schedule and

other adjacent property as a single compact bit is new

version; that no evidence can be received beyond pleadings

and absolutely there is no explanation why the plaintiff did

not file document along with the plaint or at least at the time

of her evidence and eventually, prayed the Court to dismiss

the petition.

8. Trial Court by order dated 22.02.2022 dismissed the

application. Aggrieved by the same, the present civil revision

petition is filed.

9. Heard Sri G.Nikhil, learned counsel representing Sri

T.Sreedhar, learned counsel for revision petitioner and Sri

V.V.Ravi Prasad, learned counsel representing M/s Philix Law

Firm for respondents.

10. Learned counsel for revision petitioner would submit

that these documents are necessary to prove the case of

plaintiff. He also would submit that during the cross

examination of D.W.1 when photographs were confronted to

him, he admitted some photographs and denied some of the

photographs and hence, marking of those documents are

relevant to prove the case of plaintiff. He further submitted

that the earlier advocate, who prosecuted the matter died and

later the matter was entrusted to the present advocate, who

cross examined D.Ws.2 and 3 and later, on verification, since

D.W.1 was not cross examined, the petition was filed to recall

D.W.1 and the was allowed. However, during the cross

examination D.W.1 denied some of the photographs. He also

would submit that Red Rose Restaurant is being run in the

schedule property since 01.10.2015 and thus, those

documents are relevant for consideration.

11. Learned counsel for respondents while supporting the

order of the trial Court would submit that no plea was raised

in the plaint regarding petitioner/plaintiff running restaurant

in the suit schedule property. In fact, a perusal of plaint

schedule reflects that suit schedule property is a vacant site.

He would submit that no amount of evidence without

pleading is permissible and thus, prayed to dismiss the

revision.

12. Suit O.S.No.961 of 2015 was filed by plaintiff seeking

perpetual injunction. Plaint schedule property, as extracted

supra, has been shown as vacant site. A perusal of the

boundaries mentioned in the schedule would indicate that on

the Eastern and Northern side of plaint schedule property,

the property of plaintiff is situated. Nowhere in the plaint, it

was mentioned that plaintiff is running restaurant in suit

schedule property. It is pertinent to mention her that P.W.1

himself admitted in his cross examination that Red Rose

Restaurant is situated towards east of plaint schedule

property.

13. D.W.1 was cross examined on 09.11.2011. Evidence

was closed and the suit was adjourned to 15.11.2021 for

arguments. Plaintiff filed I.A.Nos. 218 of 2021 and 219 of

2021 to reopen and recall D.W.1 and the said petitions were

allowed. Again D.W.1 was recalled after the matter underwent

nearly five adjournments and he was cross examined. Again,

suit was posted to 24.01.2022 for arguments. Again, the suit

underwent 3 or 4 adjournments and later, on 12.02.2022, the

present applications were filed to receive documents, to

reopen the suit and to recall P.W.1 to receive documents.

14. Learned counsel for revision petitioner relied on the

judgments in Bada Bodaiah and another Vs. Bada

Lingaswamy and others1, Kejriwal Enterprises Vs. General

Manager, Ordnance Factory and others2 and Lalwani &

2003 (1) ALD 790 (AP)

2004 SCC OnLine Cal 202 = AIR 2004 Cal 225

Sons Through His Proprietor, Kalyan Das Lalwani Vs.

State of Chhattisgarh and others3.

15. In Bada Bodaiah's case (supra-1), learned single Judge

of the composite High Court of Andhra Pradesh while

discussing the scope of Order VII Rule 14 (3) of CPC held

thus:

"Mere non-mention of the documents in the plaint or subsequent incidental or supplemental proceedings in the suit does not in any manner affect the power of the Court to grant leave to produce the documents at the subsequent stage."

16. In Kejriwal Enterprises's case (supra-2), learned single

Judge of the Calcutta High Court considered the scope of

Order VII Rule 14 (3) of CPC, amended by Act 22 of 2022. In

the said revision, lower Court rejected the petition on the

ground that Rule 17-A of Order XVIII of the Code has been

omitted by Amending Act 46 of 1999 and there is no scope for

production of documentary evidence, which have not been

presented along with the plaint.

17. In Lalwani's case (supra-2), learned single Judge of the

Chhattisgarh High Court while considering the facts of the

2016 SCC OnLine Chh 1355.

case, that even prior to filing of suit, legal notices were

exchanged and defendants did not dispute regarding the

transaction between the parties and eventually, allowed the

application to receive the documents on payment of costs of

Rs.10,000/- to defendant. In fact, it was observed that the

matter is coming for defendants' evidence and the defendants

yet to begin their evidence and in those circumstances,

learned single Judge allowed petition.

18. In the case on hand, as narrated supra, suit was filed

perpetual injunction. Plaint schedule property is a vacant

site. Even P.W.1 in his cross examination deposed that to the

east of plaint schedule property, a restaurant is being run. It

is not the case of plaintiff that he is running restaurant in the

suit schedule property. Such a plea was introduced for the

first time as can be seen from the record, by fling the

interlocutory application to receive the documents. In the

affidavit filed in support of the petition to receive documents,

it was contended that in the suit schedule property, a

restaurant is being run and to prove the said fact, plaintiff

intended to mark those documents.

19. In the absence of pleading, plaintiff will not be allowed

to lead evidence. A perusal of suit proceedings would indicate

that twice the suit was reopened at the stage of arguments at

the instance of plaintiff. When the matter is again posted for

arguments after a couple of adjournments, the present

applications were filed, which would show that only to drag

on the proceedings, plaintiff filed these applications. In fact,

plaintiff by filing those documents introduced new case and it

is surprise to the defendants.

20. Apart from the above discussion, a perusal of the

affidavit filed in support of the petition, does not indicate any

reason for non-filing of those documents along with the

plaint. It is not the case of the plaintiff that those documents

sought to be filed are not available with them at the time of

filing of the suit. In fact, as narrated supra, the documents

now intended to be filed would totally introduce new case to

that of the case set up by the plaintiff, which is

impermissible.

21. The scope of revision under Article 227 of the

Constitution of India was considered by Hon'ble Apex Court

in Surya Dev Rai vs. Ram Chander Rai and Ors.4. The

order of the lower is neither perverse nor amounts to failure

to exercise jurisdiction vested with it. Hence, the order of the

trial Court dismissing the petition does not call for

interference of this Court under Article 227 of the

Constitution of India.

22. Accordingly, the Civil Revision Petition is dismissed at

the admission stage. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J

8th November, 2022

PVD

(2003) 6 SCC 675