A Noorjaha, Kadapa Dist 2 Others vs A Mahaboob Bee, Kadapa Dist 10 ...
2023 Latest Caselaw 4963 AP

Citation : 2023 Latest Caselaw 4963 AP
Judgement Date : 13 October, 2023

Andhra Pradesh High Court - Amravati

A Noorjaha, Kadapa Dist 2 Others vs A Mahaboob Bee, Kadapa Dist 10 ... on 13 October, 2023

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           THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                          C.R.P.No.2026 of 2016

ORDER:

Aggrieved by the orders dated 28.01.2016 passed in I.A.No.

803 of 2015 in O.S.No.35 of 2008 on the file of the Court of V

Additional District Judge, Rayachoti, Kadapa District, (in short

'the court below') the present revision is filed.

2. The petitioners 1 to 3 herein are the plaintiffs; petitioners

4 to 7 are the legal representatives of the deceased 2nd petitioner;

petitioners 8 to 12 are the legal representatives of deceased 3rd

petitioner and respondents herein is the defendants before the

court below.

3. The petitioner herein has filed impugned application

under Section 151 of CPC seeking to reopen the suit for marking of

documents as per orders dated in 19.08.2010 in I.A.No. 678 and

679 of 2010. Upon considering the submissions of both the

counsel, the application has been dismissed by the court below.

Assailing the same, the present revision came to be filed.

4. Heard Ms. D. Padmavathi, learned counsel for the

petitioners; Mr. K. Ismail and Mr. S. Kaleemulla, learned counsel

for the respondents.

5. Learned counsel for the petitioner would contend that the

court below failed to appreciate that the relief sought by the

petitioners is in accordance with the orders dated 19.08.2010 in

I.A.No.678 of 2010 and I.A.No.679 of 2010, wherein the court

below ordered to receive the documents and recall PW-1 to mark

the documents through Advocate-Commissioner. It is further

contended that the court below failed to consider that after

allowing the petition, the defendants were directed to be cross

examined and meanwhile 5th defendant died and steps were taken

to bring her legal representatives on record. Subsequently they

were impleaded and amendment to plaint was taken up. The

Advocate commissioner was not issued warrant as per the orders

in I.A.No. 678 and 679 of 2010. It is further contended that PW-1

was suffering with paralysis. As per orders in I.A.No. 1293, 1294

and 1295 of 2011 have nothing to do with the present application.

Therefore the revision is liable to be allowed.

6. In support of contention of the petitioners, learned

counsel for the petitioners placed on record the decisions of the

Hon'ble Apex Court in "K.K.Velusamy v. N. Palanisamy"1,

wherein it was held as follows:

"14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for reopening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands on earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under Section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose".

And also, relied on a decision of this Court in "Premal

Pratap Joisher v. Vikram Jethalal Joisher"2, wherein the

1 (2011) 11 SCC 275

2 2022 SCC OnLine AP 482

learned Single Judge elaborately discussed the K.K.Velusamy's

case.

7. Whereas learned counsel for the respondents reiterated

the contents urged before the court below and vehemently opposed

to allow the revision, as the court below rightly appreciated the

facts and dismissed the application holding that the petitioner has

not produced medical proof to show that the 2nd petitioner had

paralysis and also there was gross negligence on the part of the

petitioner in prosecuting the case in the suit. Therefore the

revision is liable to be dismissed.

8. In support of contention of the respondents, learned

counsel for the respondents placed on record the decision of the

High Court for the State of Telangana in "Mrs. Suseela Solomon

(died) per L.Rs v. J. Alec Rose"3, wherein it was held as follows:

"35. As held by the Supreme Court in Arya Singh Vs. Mohindra Kumar BRA, the principle of resjudicata would be applicable at different stage of the same suit. Thus a finding given during the pendency of the first appeal on the issue regarding adequacy of description of the property for which specific performance was sought, would be binding even at the

3 Indiankanoon.org/doc/167233835

execution stage, and such contention cannot be raised during the course of execution".

In "Y.B.Patil v. Y.L.Patil"4, wherein the Hon'ble Apex Court

held as follows:

"4.........It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once on order made in the course of the proceeding becomes final, it would be finding at the subsequent stage of that proceeding."