I R Krishna, E.G.Dist vs Bathula Sri Laxmi, Visakhapatnam ...
2022 Latest Caselaw 7837 AP

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            HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

             CIVIL REVISION PETITION No.4727 of 2015
ORDER:

This Civil Revision Petition is filed by the petitioner/D.2 under

Article 227 of the Constitution of India against the orders passed by

learned Senior Civil Judge, Yalamanchili, in I.A.No.300 of 2015 in

O.S.No.63 of 2012 wherein and whereby petition filed by the

petitioner/D.2 under Order VIII Rule 1(A) r/w 151 Civil Procedure Code (in

short C.P.C) to receive the documents by condoning the delay in filing the

same is rejected.

2. The case of the revision petitioner/D.2 in brief is that R.1/plaintiff

filed suit against himself and R.2/D.1 for recovery of promissory note debt

wherein he filed written statement contesting the suit. He submits that

R.1/plaintiff and her husband filed O.S.No.70 of 2012 on the file of

Principal Junior Civil Judge, Yalamanchili wherein he filed original

discharge letter dated 11.01.2012 executed by R.1 and her husband which

also marked as Ex.B.2. It is the contention of the revision petitioner that

the said suit is decreed against which he preferred an appeal. The main

contention of the petitioner is that he pleaded in the written statement

that he discharged the debt due to R.1, who also issued discharge letters

and said documents she intended to file and prays to condone the delay in

filing the same as those documents said to be misplaced and mixed up in

other records. The 1st respondent/plaintiff filed counter before trial Court

denying the averments in the affidavit of the petitioner. It is the

contention of R.1/plaintiff that the petition is filed by the petitioner at

belated stage only to drag on the matter and documents already filed in

O.S.No.70 of 2012 on the file of Principal Junior Civil Judge's Court, but

suit is decreed against the petitioner. She prays to dismiss the petition.

3. Learned trial Judge after hearing both sides dismissed the petition

filed by the petitioner mainly observing that documents which petitioner

now intended to file with delay condonation petition are not referred in

the pleadings and delay is not properly explained and accordingly

dismissed the petition.

4. Aggrieved by the orders passed by Court below, the revision

petitioner filed the petition stating that orders passed by Court below is

illegal and irregular contrary to the facts of the case. He submits that he

has explained reason for delay in filing documents if they are not allowed

to be filed much prejudice will be caused to him. It is also the contention

of the revision petitioner to prove the plea of discharge the documents

which he filed along with petition are necessary. He prays to allow the

revision petition.

5. I have heard learned counsel for the revision petition.

6. During the pendency of revision petition R.1 died and husband of

R.1 also said to be died due to that this Court ordered notice to the legal

representatives i.e., children of R.1/plaintiff then received returned postal

cover that R.5, R.6, who are daughter and son of R.1 refused to receive

notice and notice sent to R.4 not yet returned, but R.4 to R.6 said to be

residing under one roof. Therefore, this Court is of an opinion that legal

representatives of deceased R.1 got knowledge about pendency of

present revision petition, who have not chosen to contest the petition and

then this Court proceeded to hear learned counsel for the revision

petitioner.

7. Learned counsel for the revision petitioner would submit that

petitioner has specifically pleaded in his written statement with regard to

discharge of promissory note debt said to be due to R.1/plaintiff. He would

further submit that the 1st document which petitioner intended to file is

already filed in another suit though the said suit is decreed against the

petitioner, he preferred an appeal, which is pending in the same Court. It

is the contention of the learned counsel for the revision petitioner that

documents 2 and 3 are original discharge letter and note rule book

containing endorsement of R.1 that she received money from the

petitioner, which are necessary to prove the contention of the

petitioner/D.2. He prays to allow the civil revision petition.

8. Now, the issue that emerges for consideration by this Court is:

"Whether the orders under challenge are sustainable, tenable and

whether the same warrants any interference of this Court under

Article 227 of Constitution of India?"

POINT:

9. Before going to the merits of the case, it would be beneficial to

quote Order VIII Rule 1-A C.P.C, which reads as under:-

1-A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.

(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list, and shall produce it in court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents-

(a) produced for the cross-examination of the plaintiff's witnesses, or

(b) handed over to a witness merely to refresh his memory.

10. In Levaku Pedda Reddamma and Others ... Appellant(s) Vs

Gottumukkala Venkata Subbamma and another ... Respondents in

Civil Appeal No.4096 of 2022 Judgment dated 17.05.2022, 2022 Hon'ble

Supreme Court held that "we find that the trial Court as well as the High

Court have gravely erred in law in not permitting the defendants to

produce documents, the relevance of which can be examined by the trial

Court on the basis of the evidence to be led, but to deprive a party to the

suit not to file documents even if there is some delay will lead to denial of

justice. It is well settled that rules of procedure are hand-maid of justice

and, therefore, even if there is some delay, the trial Court should have

imposed some costs rather than to decline the production of the

documents itself." Accordingly the Hon'ble Apex Court allowed the Civil

Appeal and permitted the defendants to file documents.

11. Coming to the facts of the present case, which shows that

R.1/plaintiff filed suit against R.2/D.1 and the petitioner for recovery of

promissory note debt dated 23.07.2006 wherein petitioner filed written

statement pleaded discharge. It is also averred in the written statement

filed by the petitioner before trial Court that R.1 issued receipt after

receiving money which plea petitioner intended to prove by filing three

documents shown in the petition, which are certified Photostat copy of

receipt dated 02.06.2011, original receipt dated 02.06.2011 and rule book

said to be contained signature of R.1/plaintiff. It is for the petitioner to

prove the contents of document by leading evidence and denying

petitioner to file document though there is some latches are delay on the

part of the petitioner will amounts to denial of justice as observed by

Hon'ble Apex Court that rules of procedure are hand-maid of justice and

an opportunity has to be given to the petitioner to produce the documents

which relevancy can only be considered at the time of admitting

documents or at the time of final disposal of the case. It is no doubt true

that there is delay in filing documents, which are not filed along with

written statement, but fact remains is that trial of the suit is not yet

commenced as per the contention of learned counsel for the revision

petitioner. In those circumstances, the petitioner can be permitted to file

documents, which has to be received by the trial Court subject to proof

and relevancy. Therefore, this Court is of an opinion that orders passed by

learned trial Judge are not sustainable either in law or on facts, which

warrants interference of this Court under Article 227 of Constitution of

India.

12. In the result, the Civil Revision Petition is allowed, on condition that

petitioner shall deposit Rs.1,000/- before Mandal Legal Services

Committee, Yalamanchili on or before 15.11.2022, otherwise this petition

shall stand dismissed. On such deposit Court below shall receive the

documents subject to proof and relevancy and commence the trial, which

shall be disposed of within six months from the date of receipt of orders of

this Court in the present civil revision petition.

Consequently, miscellaneous petitions pending, if any, shall stand

closed.

______________________ BANDARU SYAMSUNDER, J Dt:14.10.2022.

Chb

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.4727 OF 2015

Date: 14.10.2022

Chb