B Mohan, Chittoor Dist Another vs M.C. Krishna Rao, Chittoor Dist
2022 Latest Caselaw 7964 AP

                                     1

          HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

             CIVIL REVISION PETITIONNo.156 of 2016
ORDER:

This Civil Revision Petition is filed by the petitioners/D.3, D.5 under

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

Additional Senior Civil Judge, Tirupati, in I.A.No.345 of 2015 in O.S.No.88

of 2006 dated 23.09.2015 wherein and whereby learned trial Judge

dismissed the petition filed by the petitioners/D.3, D.5 to reopen the suit

to adduce further evidence on their behalf.

2. The case of the petitioners before the trial Court in brief is that

R.4/D.4 in the suit was examined as DW.1 and got marked Exs.B.1 to B.15

through him and he was partly cross examined by counsel for the plaintiff

(R.1) herein but due to ill health of DW.1, he could not be produced

before the trial Court for further cross examination thereby trial Court

eschewed his evidence and closed the evidence on behalf of the

defendants and posted the matter for arguments. It is the contention of

the petitioners that in the meanwhile, D.4 i.e., DW.1 died on 03.09.2010,

which they intimated to the Court by filing memo on 08.03.2011 and

thereafter D.2 in the suit also died, but no steps taken to add legal

representatives of D.2 and D.4 due to that trial Court dismissed the suit

against D.2 on 03.02.2015. The petitioners submit that D.3, who is 1st

petitioner herein also suffering from heart ailment underwent surgery and

after his recovery, he met his advocate, who advised him to adduce

further evidence on their behalf. It is also the contention of the petitioners

that they may be permitted to adduce further evidence, otherwise they

will suffer irreparable loss and they also filed medical certificate of 1st

petitioner/D.3.

3. For which R.1/plaintiff filed counter before trial Court denying

averments in the affidavit of the 1st petitioner/D.3. It is the contention of

R.1/plaintiff that evidence of DW.1 was eschewed by the Court on

06.08.2010 as DW.1 did not attend before the Court in spite of granting

sufficient time. He submits that petitioners/defendants have not filed any

petitions to condone absence of DW.1 and the petitioners have no legal

right to question orders passed against D.4. He also stated that when

witness did not turn up for evidence, as per law automatically Court has to

eschew his evidence and orders passed by the trial Court eschewing

evidence of DW.1 on 06.08.2010 are proper and valid. They prays to

dismiss the civil revision petition.

4. After hearing both sides, learned trial Judge dismissed the petition

filed by the petitioner on the ground that in spite of sufficient opportunity

given to the defendants to adduce evidence, they failed to adduce by

observing that petition to reopen the evidence of defendant is filed only to

drag on the proceedings.

5. Aggrieved by the orders passed by learned trial Judge, the

petitioners/D.3, D.4 have filed present revision petition stating that Court

below erroneously dismissed their petition without giving sufficient

opportunity for them to adduce further evidence when admittedly DW.1

evidence was eschewed and thereafter he was died and his cross

examination was not completed. They prays to allow the civil revision

petition.

6. I have heard learned counsel for the revision petitioner.

7. Learned counsel for the revision petitioner would submit that trial

Court Judge without considering the facts and circumstances of the case

dismissed the petition. He argued that admittedly DW.1 died due to that it

is necessary for the petitioners to adduce evidence on their behalf when

the evidence of DW.1 is eschewed by the trial Court. He would further

submit that if an opportunity is not given to the petitioners to adduce

evidence on their behalf, it will cause irreparable loss to them and trial

Court failed to consider the subsequent events of the suit which dismissing

the petition filed by the petitioners. 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. It is not in dispute R.1/plaintiff filed suit against D.1 to D.6 and

petitioners herein are D.3, D.5 in the suit seeking permanent injunction in

respect of vacant house site situated in Tirupathi Town. It appears that

before trial Court D.4 M.R.Ashok was partly examined as DW.1 and

Exs.B.1 to B.15 were marked and when the matter was posted for further

cross examination DW.1 not appeared before the Court thereby trial Court

eschewed the evidence of DW.1 and thereafter DW.1 died on 03.09.2010

and D.2 also died, but no steps taken to add legal representatives of

deceased defendants by R.1/Plaintiff. The petitioners herein also one of

the defendants in the suit filed by R.1/plaintiff put forth their defence and

1st petitioner/D.3 already filed chief examination affidavit along with

petition filed to reopen evidence as DW.2 wherein he has referred

previous litigation between the parties and filed certified copy of Judgment

and decree in A.S.No.90 of 1999. When admittedly, DW.1 died though

after eschewing his evidence by the Court and when the petitioners herein

who are independent defendants putting forth their defence requires to

adduce evidence on their behalf to substantiate their contention in the

suit. Learned trial Judge in a cryptic orders by mentioning that at the

stage of arguments, petition is filed by observing that it is only filed to

drag on the proceedings, dismissed the petition. Learned trial Judge has

not discussed with regard to petitioners filing medical certificate of the 1st

petitioner showing his illness and not considered the 1st petitioner filing his

chief examination affidavit of DW.2 in the suit showing his bona fides. As

per the contention of learned counsel for revision petitioner as they

preferred revision petition before this Court against the orders passed by

learned trial Judge suit before trial Court is still pending, which is coming

up for arguments, if an opportunity is not given to the petitioners to

adduce evidence on their behalf putting forth their defence, who also filed

written statement certainly it will cause prejudice to their case. It is well

settled law that procedure laws are hand-maid of justice when admittedly

D.4 (DW.1) died during pendency of the suit, if an opportunity is not given

to the petitioners to adduce evidence in the suit opposing the contention

of R.1/plaintiff certainly it will cause prejudice to their contention, which

failed to consider by learned trial Judge. Therefore, orders passed by

learned trial Judge are not sustainable in law and also on facts, which

warrants interference of this Court which invoking jurisdiction under Article

227 of Constitution of India.

10. In the result, the Civil Revision Petition is allowed. The petition filed

by the petitioners/D.3, D.5 in I.A.No.345 of 2015 in O.S.No.88 of 2006 is

hereby allowed. The trial Court shall permit petitioners/D.3, D.5 to adduce

further evidence on their behalf and dispose of the suit as expediously as

possible within six months from the date of receipt of orders of this Court

in the present Civil Revision Petition. No order as to costs.

Consequently, miscellaneous petitions pending, if any, shall stand closed.

The interim stay if any granted is stands vacated.

______________________ BANDARU SYAMSUNDER, J Dt:19.10.2022.

Chb

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.156 OF 2016

Date: 19.10.2022

Chb