Gundluru Sreenivasulu vs Gundluru Bhagyamma
2022 Latest Caselaw 8736 AP

           HON'BLE SRI JUSTICE SUBBA REDDY SATTI

            CIVIL REVISION PETITION No.1161 of 2022

   Gundluru Sreenivasulu, S/o Late Subbachari, aged about 35
   years, R/o D.No.2-1680, LBS Road, Piler Village, Post and
   Mandal, Chittoor District and another

                                                     ... Petitioners

                                Versus

   Gundluru Bhagyamma, W/o Late Subramanyam Achari, aged
   62 years, Hindu, Dependent, R/o Garnimittavaripalle,
   H/o Bommaiahgaripalle, Challavaripalli Post, Rompicherla
   Mandal, Chittoor District.

                                                     ... Respondent

Counsel for the petitioners              : Sri K. Muni Reddy           Bala
                                           Prasad
Counsel for respondent                   : Sri V.S.K. Rama Rao


                               ORDER:

Defendant Nos.5 and 6 in the suit filed the present civil

revision petition under Article 227 of the Constitution of India

aggrieved by order, dated 10.03.2022 passed in I.A.No.35 of

2022 in O.S.No.52 of 2009 on the file of learned Senior Civil

Judge, Piler.

2. Respondent herein being the plaintiff filed O.S.No.52 of

2009 on the file of learned Senior Civil Judge, Piler, to declare

that plaintiff has got right and title over 3/4th share in 'A'

schedule properties and half share in 'B' schedule properties

and to partition and deliver possession of the same etc.

3. In the plaint, plaintiff contended inter alia that she is wife

and defendant No.1 in the suit is mother of deceased

Subramanyam Achari; that 'A' schedule properties are ancestral

and joint family properties of Subramanyam Achari and his son

Nagendra; that both are having half share; that Nagendra, died

intestate, unmarried, on 18.05.1994 leaving behind him the

plaintiff as sole legal heir; that plaintiff succeeded to his half

share in 'A' schedule properties; that Subramanyam Achari,

husband of the respondent/plaintiff died intestate on

24.07.1996 leaving behind the plaintiff and defendant No.1 in

the suit as his legal heirs; thus, plaintiff got 3/4th share in 'A'

schedule property and that defendant No.1 is entitled for

remaining 1/4th share of 'A' schedule properties; that 'B'

schedule properties are self acquired properties of deceased

Subramanyam Achari and hence, both defendant No.1 and

plaintiff are entitled to half share; that defendant No.1 got

issued legal notice claiming entire property and denied share to

the respondent/plaintiff under Will, dated 28.02.1992 said to

have been executed by deceased Subramanyam Achari; that

Subramanyam Achari filed O.P.No.17 of 1989 and obtained ex

parte decree of divorce behind the back of the plaintiff; that

plaintiff initiated steps to get the decree set aside and the same

is pending; that item No.1 of 'B' schedule property is in the

custody of defendant Nos.2 and 3 and item No.2 is in the

custody of defendant No.4; that defendant No.1 is trying to

claim the entire amounts lying with other defendants. Hence,

suit was filed.

4. The suit is contested by defendant No.1 by filing written

statement. It was contended inter alia that Subramanyam

Achari during his life time executed registered Will on

28.02.1992 bequeathing the properties to defendant No.1 (life

interest) and thereafter vested the same in favour of

G. Sreenivasulu; that Subramanyam Achari filed OP No.17 of

1989 for divorce and since plaintiff did not contest the same, ex

parte decree was passed on 21.09.1992; that plaintiff filed

I.A.No.849 of 1994 to set aside the ex parte decree and later it

was transferred to Piler and it was renumbered as I.A.No.408 of

1996; that since plaintiff did not prosecute, it was dismissed on

23.08.1996; that after long lapse of time, after the death of

Subramanyam Achari, the plaintiff filed I.A.No.171 of 1997 to

condone delay in filing petition to set aside the dismissal order

passed in I.A.No.408 of 1996 and eventually prayed the Court to

dismiss the suit.

5. With the above pleadings, the parties went to trial.

Pending the suit, the revision petitioners impleaded themselves

as defendant Nos.5 and 6 by filing I.A.No.385 of 2017. Later

they filed additional written statement. Pending the suit

defendant No.1 died on 14.12.2018. I.A.No.64 of 2019 was filed

by the petitioners/defendant Nos.5 and 6 to recognize them as

legal representatives of the deceased and the same was allowed

on 22.04.2019.

6. Defendant No.6 filed affidavit in lieu of chief examination

on 21.07.2021. He was cross-examined and eventually evidence

was closed on 23.11.2021. After completion of arguments on

behalf of plaintiff on 06.12.2021, the matter underwent three to

four adjournments for defendants' arguments. As per the

record, court below also passed conditional orders. At that point

of time, defendant Nos. 5 and 6 filed (1) I.A.No.35 of 2022 under

Order VIII Rule 1(A) and Section 151 of CPC to receive

documents (2) I.A.No. 36 of 2022 under Order 18 Rule 17 and

Sec 151 CPC to recall D.W.1, (3) I.A.No. 37 of 2022 under

Section 151 CPC to reopen defendants evidence, (4) I.A.No. 38 of

2022 under Sec 151 CPC to receive Additional Chief

Examination and (5) I.A.No. 39 of 2022 under Order 18 Rule 17

to recall P.W.1.

7. In the affidavit filed in support of the petition in I.A.No. 35

of 2022, it was contended inter alia that defendant No.1

executed registered gift deed, dated 03.08.2008 and registered

Will dated 19.04.2006 in favour of the petitioners and that

defendant No.1 died on 14.12.2018; that after the death of

defendant No.1, petitioners were added as defendant Nos.5 and

6; that during cross-examination of DW1, Court did not mark

the documents; that some documents were not filed by over

sight; that some of the documents were not filed by defendant

No.1 and thus prayed the Court to permit them to file

documents.

8. Respondent/plaintiff filed counter and opposed the

application. It was contended inter alia that petitioners

themselves filed I.A.No.385 of 2017 under Order I Rule 10 of

CPC and came on record as defendant Nos.5 and 6. They filed

separate written statement. Defendant No.6 was examined as

DW1 before the death of defendant No.1 and in fact he filed

chief affidavit in lieu of examination on 21.07.2017. His cross-

examination was completed and the evidence was closed on

23.11.2021. Arguments on behalf of the plaintiff were closed on

06.12.2021. At request of learned counsel for the defendants,

the matter was posted for arguments to 03.01.2022, thereafter

to 21.01.2022, 31.01.2022 and 07.02.2022. On 07.02.2022,

there was no representation and hence, the matter was

adjourned to 18.02.2022 with a conditional order. At that point

of time, the application is filed to receive documents and no

reason was explained. The application is filed only to drag on

the proceedings and prayed to dismiss the petition.

9. The trial Court by order, dated 10.03.2022 dismissed the

application. Aggrieved by the same, revision is filed.

10. Separate orders were passed in I.A.Nos.35 and 39 of

2022. Common order was passed in I.A.Nos. 36 to 38 of 2022

on the same day.

11. Heard both sides.

12. Learned counsel for the petitioners would contend that

petitioners being legal representatives of defendant No.1 came to

know about the documents sought to be received and hence,

they filed this petition seeking leave of the Court. He would also

further contend that the documents sought to be filed have a

bearing in deciding the dispute between the parties. He would

also contend that the petitioners assigned proper reasons.

13. On the other hand, learned counsel for the respondent

while supporting the order of the trial Court would contend that

to drag on the proceedings only, the above application is filed.

Petitioners in fact made wrong statement on oath. Petitioners

filed the application in the lower Court without arraying other

defendants to the suit as parties and thus, prayed to dismiss

the revision.

14. In the light of above contentions the point arises

consideration is:

Whether, the order passed by lower court in dismissing interlocutory application to receive documents is sustainable?

15. The suit in O.S.No.52 of 2009 was filed by

respondent/plaintiff for declaration and partition. Pending the

suit, defendant Nos.5 and 6 came on file by filing I.A.No.385 of

2017 under Order I Rule 10 of CPC and impleaded themselves

as party defendants to the suit as defendant Nos.5 and 6. They

filed additional written statement long back. Along with written

statement, no documents were filed.

16. Defendant No.6 filed affidavit in lieu of chief examination

on 21.07.2017. Eventually the evidence of defendants was

closed on 23.11.2021. Arguments on plaintiff side were

completed on 06.12.2021. The suit was adjourned for defendant

arguments to 03.01.2022. Thereafter the matter was adjourned

to 21.01.2022, 31.01.2022, 07.02.2022 and to 18.02.2022.

17. In the affidavit filed in support of the petition, petitioners

took different and inconsistent pleas (1) that Court did not mark

the documents and (2) that by mistake the documents were not

filed. The documents sought to be filed are Will executed by

defendant No.1, death certificate, copy of order in SOP, copy of

examination of PW1 in SOP and cross of RW2 in SOP. Regarding

SOP, there is no pleading in the written statement filed by

defendant No.1. Defendant Nos.5 and 6 filed written statement

long back. Going by the record, the evidence of defendants was

closed on 23.11.2021. Nothing is forthcoming in the affidavit as

to when defendants could secure those documents. No reason

was assigned as to why those documents were not filed along

with the written statement or at the time of cross examination.

18. Apart from that the conduct of the defendants in not

arguing the matter though the matter underwent four

adjournments shows that the present application is filed only to

drag on the proceedings.

19. Learned counsel for the petitioners relied upon judgment

of the Hon'ble Apex Court reported in Sugandhi (dead) by Lrs.

& Anr. Vs. P. Rajkumar rep. by His Power Agent Imam Oli1.

20. In that case when the matter was posted for evidence of

the defendant an application was filed seeking leave to produce

certain documents. The trial Court dismissed the same and the

same was confirmed by the High Court. The Hon'ble Apex Court

considered all the aspects and allowed special leave petition. In

fact the Hon'ble Apex Court also recorded a finding that in the

application cogent reasons were assigned for not producing

documents along with the written statement.

21. Whereas in the case on hand, an application to receive

documents was filed, as stated supra, after completion of

plaintiff's arguments and after the suit underwent four

adjournments for defendants' arguments. The affidavit also does

2020 10 SCC 706

not contain any valid reason as to why they were not filed

earlier.

22. The Hon'ble Apex Court and this Court time and again

cautioned that procedure is the handmaid of justice. Procedural

and technical hurdles shall not be allowed to come in the way of

the court while doing substantial justice. However, the Courts

must see the reasons assigned for not producing the documents

as also the conduct of the party. As observed supra, the

conduct of the petitioners is writ large. Petitioners intend to

drag the suit by filing number of interlocutory application

without advancing arguments.

23. It is also pertinent to mention here that in the affidavit

petitioners contend that Court did not mark the documents and

later contend that documents were not filed by mistake and

oversight. Thus, petitioners went to the extent of blaming the

court that court did not mark the documents which is factually

incorrect.

24. Apart from that as observed by the trial Court, the

defendants did not choose to array the other defendants as

party respondents to the petition. On the ground also, the

interlocutory application is liable to be dismissed.

25. In view of the above discussion, in the considered opinion

of the Court, the order passed by the Court below does not

suffer from any illegality warranting interference of this Court

under Article 227 of the Constitution of India. Hence, this

revision is liable to be dismissed.

26. Accordingly, this Civil Revision Petition is dismissed at the

stage of admission. No costs.

As a sequel, all the pending miscellaneous applications shall stand closed.

__________________________ SUBBA REDDY SATTI, J

Date : 15.11.2022 ikn

HON'BLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL REVISION PETITION No.1161 of 2022

Date: 15.11.2022

ikn