Yallamilli Venu Mohan vs Kona Venkata Srinivasa Rao
2022 Latest Caselaw 8093 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CIVIL REVISION PETITION No.1796 of 2019

ORDER:

The sole plaintiff before the trial Court filed this civil

revision petition under Article 227 of the Constitution of India

questioning the correctness of order dated 12.06.2019 of

learned Junior Civil Judge, Mummidivaram in I.A.No.128 of

2019 in O.S.No.114 of 2007. He is aggrieved because of the fact

that under the impugned order, learned trial Court granted

leave for defendant No.6 in the suit in filing certain documents.

Defendant No.6 in the suit is respondent No.1 in this revision.

Respondent Nos.2 to 6 are rest of the defendants in the suit.

2. This revision petitioner filed O.S.No.114 of 2007 stating

that the suit schedule property belongs to Sri Gopala Krishna

and he died. Defendant No.2 is his wife and defendant Nos.3

and 4 are his daughters and plaintiff is his son. Therefore, the

suit property shall be divided into four shares and grant him

one share. Plaint further shows that defendant No.1 is a

woman in illegal intimacy with late Gopala Krishna. Gopala

Krishna purchased one of the items of the suit schedule

property in the name of that woman. Plaint further shows that

defendant No.5 in the suit claimed to have purchased another

one item of the suit schedule under a registered sale deed dated

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23.02.2007 executed by defendant No.1. Plaint further shows

that defendant No.6 in the suit was not originally party and the

plaintiff by filing I.A.No.293 of 2016 got him impleaded. The

amended plaint indicates that as per the written statement of

defendant No.1, one of the items of the suit schedule property

was sold out by her under a registered sale deed dated

30.06.2007 and that she got that property because of a Will

dated 30.12.2005 executed by late Gopala Krishna in her

favour. Those are the essential averments in the amended

plaint. It seems that issues in the suit were settled and the

evidence in the suit was commenced and the evidence on

plaintiff's side was over and the matter was posted for evidence

on defendants' side. It is at that stage, defendant No.6 came up

with I.A.No.128 of 2019 in O.S.No.114 of 2007 under Order VIII

Rule 1A and Section 151 C.P.C. requesting the Court to

condone the delay in filing 9 documents listed therein and

receive them. Those documents are as below: 1 to 9:

"1. Certified copy of the registered sale deed dt: 30.06.2007

2. Certified copy of the ratification deed doct.19.11.2018

3. Certificate issued by Tahsildar, Mummidivaram about the correct survey number dt: 07.05.2018

4. Original sale deed dt: 04.07.2002 in the name of 1st defendant and her husband.

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5. Original unregistered will dt: 30.12.2005 executed by Yellamelli Gopala Krishna

6. Bunch of Tax receipt for my landed property.

7. Adangal copy for my landed property issued by Tahsildar, Mummidivaram

8. 1-B copy for my landed property issued by Tahsildar, Mummidivaram

9.Pattadar Passbook issued by the Tahsildar, Mummidivaram"

3. Defendant No.6, being the petitioner in I.A.No.128 of

2019, swore an affidavit in support of the petition and stated

that all the necessary averments were there in his written

statement about his purchase of the property from defendant

No.1 and about defendant No.1 getting the property under a

Will. It also mentions about the original sale deed executed by

defendant No.1 in his favour and about mistake in the survey

number and how a registered rectification deed was made by

the executant. It further shows that when he purchased

property from defendant No.1, she handed over the original

unregistered Will dated 30.12.2005, but that was misplaced in

his house and he recently traced it out and therefore, there is

delay so far as Will is concerned. For other registered

documents, he stated that the originals were kept with society

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and he borrowed loan for the purpose of his agricultural

operations and thus, the documents were used for mortgage.

Therefore originals could not be filed. That he recently obtained

certified copies of such originals. With such averments, he

sought leave of the Court and receive the documents. Plaintiff

was shown as 6th respondent in that application. He filed a

counter denying the petition mentioned averments. It is stated

that the Will dated 30.12.2005 is not at all in existence. That

the petitioner filed his written statement on 13.11.2017 and

mentioned about this sale deed and the unregistered Will, but

did not choose to file along with the written statement. Issues

were settled, which also make a reference to this unregistered

Will. Defendant No.1 in her sale deed in favour of defendant

No.5 did not make a mention about this Will and in the sale

deed executed by defendant No.1 in favour of defendant No.6

also there is no recital about the Will. When the plaintiff

testified as PW.1 or when cross-examination of DW.1 was done,

the Will was not produced. Defendant No.1 gave evidence as

DW.1 and in her cross-examination she said that the Will was

in her possession. Defendant No.1 is the propounder of the

alleged Will but she did not file it. While the cross-examination

of DW.1 is pending, defendant No.6 has come up with this

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petition. The alleged Will is prepared on a scrap of paper by

manipulation. Then it is stated that the petitioner/defendant

No.6 is a practicing advocate with 20 years standing behind

him. The delay stated is misplacement of Will and its recovery

and it does not disclose the date of tracing out the Will and how

he traced it out. As he/plaintiff took serious contentions about

non-existence of the alleged Will dated 30.12.2005, the present

Will is fabricated and is attempted to be brought on record at

this stage. For these reasons he sought for dismissal of the

petition.

4. Learned trial Court after considering the material on

record and considering the submissions made by both sides,

allowed the petition and received the documents subject to proof

and relevancy. It also mentioned that legal burden to prove Will

as contained in Section 68 of the Indian Evidence Act is on the

propounder of the Will, who is the petitioner before it, who is

defendant No.6 in the suit.

5. Aggrieved by that order, the plaintiff in the suit has come

up with this revision stating that learned trial Court failed to

appreciate the scope of Order VIII Rule 1A C.P.C. and allowed

the petition in a routine manner. The documents were not filed

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along with the written statement and they are sought to be filed

after commencement of trial and seeking leave of the Court was

required and such application must explain the reasons for

failure to file the documents along with written statement. That

the application of defendant No.6 before the trial Court does not

contain any such explanations. For these reasons, he sought

for setting aside the order of the trial Court.

6. During the course of arguments, learned counsel for

revision petitioner states that there was failure of justice on part

of the trial Court and it ought not to have received the

documents and cited Zulfikar Hussian v. Zainab Begum

(died)1.

7. Learned counsel for respondent No.1 submits that what

all that is pleaded in the written statement is borne by

documents and it is only those documents, which he sought to

present before the Court and the trial Court rightly exercised its

discretion and received the documents and such documents are

necessary for the decision in the suit and there is nothing to

interfere with the impugned order.

2018 (4) ALT 1995 (AP)

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8. Having heard the learned counsel on both sides and

having perused the material on record, the point that falls for

consideration is:

"Whether in considering the application for granting leave

for documents in terms of Order VIII Rule 1-A(3) C.P.C. the trial

Court committed any error resulting in miscarriage of justice?

9. Point:

For benefit, Order VIII Rule 1-A C.P.C. is extracted here:

"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."

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10. The provision shows that where the defendant has based

his defence upon documents he is expected to file them along

with the written statement. The provision does not show that if

such documents are not filed along with the written statement,

the defendant is forever prohibited from filing any such

documents. The provision further provides that the defendant

is entitled to file documents at a later stage but he should do it

only after obtaining leave from the Court. On what grounds

leave could be granted or refused is not provided by the

provision itself. Therefore, it is completely the discretion of the

Court holding the trial to decide this aspect of the matter. By

the impugned order, the learned trial Court exercised its

discretion and granted leave. A Court of law merely receiving

documents by itself does not result in miscarriage of justice to

anyone. This Court in M.B.Chander v. M/s. Balakrishna Rao

Charitable Trust2 held that concerning reception of certain

pieces of evidence or rejection of certain pieces of evidence they

are not matters amenable for revision under Article 227 of the

Constitution of India. In that view of the matter, this revision is

not maintainable at all.

(2016) 6 ALT 1

Dr. VRKS, J C.R.P.No.1796 of 2019

11. The amended plaint itself speaks about defendant No.1

selling away properties in favour of defendant No.6 and

defendant No.1 claiming right to sell the properties emanating

out of an unregistered Will. It is also undisputed that defendant

No.6 was originally not a party to the suit. It is the plaintiff,

who dragged him to the litigation. It is undisputed that

defendant No.6 filed his written statement and made averments

concerning the Will and thereafter the sale deed under which he

had come to purchase the property etc. Thus, all the necessary

averments were there in the written statement. The written

statement refers to documents also. Only lapse was, these

documents were not filed along with the written statement.

When they were sought to be filed and a prayer for leave was

sought for, the trial Court felt it was in the interest of justice to

allow it and accordingly it allowed it. Now the question is, did it

exercise its jurisdiction as is required under law? That can be

assessed only when there are facts enabling the Court to have a

prudent exercise of discretion. The facts in the affidavit of the

petitioner before the learned trial Court show that one set of

documents were lying with a society by way of mortgage and

therefore, certified copies are now obtained and they are sought

to be filed. Coming to the Will, it is stated that in the house it

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was misplaced and now it retraced. Whether such a Will is

genuine or fake is a matter to be decided at the trial. The

contention of the revision petitioner that such Will never existed

is repelled by defendant No.6 by producing the Will. Therefore,

the genuineness of the Will, which is matter for consideration in

the trial, cannot be thwarted by non-receiving of the Will. When

a client says that he misplaced it in the house and retraced it,

there shall be some reason for a Court to discard it. In the

present case, all the documents find their reference in one way

or other in the pleadings itself. Therefore, non-filing of them

along with the written statement on the ground that the Will

was not traced seems to be a genuine cause. Otherwise what

would be the benefit a party gets by withholding a document,

which he was narrating in his own written statement.

Therefore, the facts were properly analyzed by the trial Court

and it appropriately exercised its discretion.

12. The contention of the revision petitioner is that the

1st respondent is a practicing advocate and the date of the

misplacement, the date of tracing it out, the place where he

traced it out are not mentioned and therefore his explanations

are not acceptable and cited in his support Zulfikar Hussian's

case (supra 1). That judgment does not say that documents

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could never be received by the Court. The concluding paras of

that judgment indicate Court granting permission for certain

documents. That was a case where this Court finds that

evidence on both sides was over and 14 years after closure of

evidence on plaintiff's side certain documents were sought to be

brought on record by the plaintiff by reopening the evidence. It

was in that context, this Court had to say that the large volume

of the documents that were proposed to be filed were sought to

be justified on a ground that they were misplaced and for

accepting such stray sentence, the required details were missing

in the petition. So, in the nature of the facts available before it,

this Court had taken certain decisions in the above cited ruling.

In the case at hand keeping the originals with the society by

way of mortgage and failing to locate the Will at the time of

written statement and trying to file them even before defendant

No.6 commenced his evidence certainly justified the trial Court

in allowing the petition. There are absolutely no merits in this

revision. Point is answered against the revision petitioner.

13. In the result, this Civil Revision Petition is dismissed with

costs confirming the order dated 12.06.2019 of learned Junior

Civil Judge, Mummidivaram in I.A.No.128 of 2019 in

O.S.No.114 of 2007.

Dr. VRKS, J C.R.P.No.1796 of 2019

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 31.10.2022 Ivd

Dr. VRKS, J C.R.P.No.1796 of 2019

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION No.1796 of 2019

Date: 31.10.2022

Ivd