Gundluru Sreenivasulu, vs Gundluru Bhagyamma,
2022 Latest Caselaw 8737 AP

           HON'BLE SRI JUSTICE SUBBA REDDY SATTI

        CIVIL REVISION PETITION Nos.1122, 1121 and 1160 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 in 3 CRPs

                                 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 in 3 CRPs

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

COMMON 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 common order, dated 10.03.2022 passed in

I.A.Nos. 36, 37 and 38 of 2022 in O.S.No.52 of 2009 respectively

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 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 a 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.

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 in the year 2017. He was cross-examined and eventually

evidence was closed on 23.11.2021. After completion of

arguments on behalf of defendants on 06.12.2021, the matter

underwent three to four adjournments for defendants'

arguments. As per the record, court below also imposed

conditions. 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 petitions in I.A.Nos.

36, 37 and 38 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, these applications were filed to recall DW1, reopen

evidence of DW1 and to receive documents and no reasons were

explained. These applications are filed only to drag on the

proceedings and prayed to dismiss the petition.

9. The trial Court by common order, dated 10.03.2022

dismissed the applications. Aggrieved by the same, revisions are

filed.

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

2022.

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 these petitions seeking leave of the Court. He would

also further contend that the purpose of filing of the petition is

to receive some documents, which have a bearing in deciding

the dispute between the parties. He would also contend that

the petitioners assigned proper reasons. 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.

2020 10 SCC 706

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 petitions are 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. The suit O.S.No.52 of 2009 was filed by the plaintiff for

declaration and partition, defendant Nos.5 and 6 came on to file

by filing I.A.No.385 of 2017 under Order I Rule 10 of CPC. They

also filed additional written statement long back. Along with

written statement, no documents were filed.

15. 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.

16. In the affidavits filed in support of the petitions, common

averments made. 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.

17. 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.

18. The facts of the case in Sugandhi (dead) by Lrs. & Anr.

Vs. P. Rajkumar rep. by His Power Agent Imam Oli are that

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.

19. Whereas in the case on hand, the applications to recall

DW1, reopen defendants' side evidence and to receive additional

chief examination were filed, as stated supra, after completion

of plaintiff's arguments and after the suit underwent four

adjournments for defendants' arguments. The affidavit also

doesn't contain any valid reasons as to why they were not filed

earlier.

20. 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 at large. Petitioners intend to drag the suit

by filing number of interlocutory applications without advancing

arguments.

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

petitioners contended 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.

22. 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.

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

of the Court, the common 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.

24. Accordingly, this Civil Revision Petitions are 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 Nos.1122, 1121 and 1160 of

Date: 15.11.2022

ikn