M.A. Majeed vs M/S. Blue Birds Educational ...
2023 Latest Caselaw 3028 Tel

                THE HON'BLE Dr. JUSTICE G. RADHA RANI

                 CIVIL REVISION PETITION No.2499 of 2023

O R D E R:

This Civil Revision Petition is filed by the petitioners-respondents-

plaintiffs 1 to 3 aggrieved by the order dated 18.08.2023 in I.A.No.818 of 2023 in

O.S.No.159 of 2017 passed by the Principal District Judge, Hanumakonda filed by

the respondents 1 to 9-petitioners-defendants 1 to 9.

2. The case of the petitioners was that the petitioner No.1 was the

founding member and the Secretary, petitioner No.2 was the President and petitioner

No.3 was the Vice President of the Respondent No.1 society which was registered

under the name and style of "Blue Birds Educational Society" under the Andhra

Pradesh (Telangana Area) Public Societies Registration Act, 1350 Fasli (Act 1 of

1350 Fasli). The society was established to propagate and impart Islamic

Education without any profit motto. Subsequently, the respondents 2 to 8 have

offered themselves to stand as members of the Managing Committee of the

Respondent No.1 society along with the Petitioners and promised that they would

invest all the amounts required for new constructions and for running and upholding

the Respondent No.1 society. On 24.08.2003, a new body of members of

Respondent No.1 society had entered the Society for its development and their

names were recorded in accordance with by-laws. The Respondents No.2 to 8 after

having been nominated as members of the Respondent No. 1 society, in collusion CRP_2499_2023 Dr.GRR, J

and in connivance with each other wanted to grab the movables / immovable assets

of the society. To prevent the illegal acts of respondents 2 to 8, the petitioners filed

O.S.No.159 of 2017 before the Principal District Judge, Warangal seeking the relief

of rendering the accounts of the Respondent No.1 society by respondents 2 to 8-

defendants 2 to 8 and to direct the respondents 10 and 11 to deposit arrears of rent

pertaining to respondent No.1 society and to direct the respondents 3 to 5 and

respondents 8 and 9 to return the compensation which was wrongfully claimed in

their personal names from the Government in relation to the acquisition of land

which belonged to the Respondent No. 1 society and also seeking various other

reliefs.

2.1. The respondents 2 to 8 made their appearance. The respondent No.4

filed his written statement and the same was adopted by the respondents 1, 2, 3 and

respondents 5 to 9. Thereafter, respondents 1 to 9 filed I.A No.637/2020 and the

petitioners filed I.A.No.714 of 2020 for handing over the keys and I.A.No.716 of

2020 was filed by the tenants seeking permission to deposit the keys of the building

of the respondent No.1 society. I.A. No.637 of 2020 filed by the respondents No. 1

to 9 was allowed and I.A.Nos.714 and 716 of 2020 were dismissed. As against the

said order allowing I.A No.637 of 2020, CRP No.22 of 2021 was filed and against

the Order in I.A No.714 of 2020, C.R.P No. 126 of 2020 was filed. C.R.P Nos.22

and 126 of 2021 were disposed of by a common order dated 25.02.2021 noting that CRP_2499_2023 Dr.GRR, J

the custody of the building should continue to be with society supervised by

defendant No.3 and if the society intended to grant lease/license of the suit premises,

it might do so by following transparent procedure and award the lease/license to the

party who offered highest amount and the proceedings of auction and granting

lease/license should be supervised by an officer appointed by the Principal District

Judge, Warangal. After the disposal of Civil Revision Petitions 22 and 126 of 2021,

the respondents 1 to 9 filed I.A No.689 of 2022 under Section 151 of C.P.C for

appointing Officer/Commissioner to supervise the procedure of lease/license

granting to a higher bidder in the auction. The petitioners vehemently opposed the

said application stating that the lease had to be granted only if the society intended

to lease and there was no clause in the by-laws to lease out the premises and the said

I.A.No.689 of 2022 was filed solely to take the property of the respondent No.1 into

the hands of the respondents 2 to 8. The Principal District Judge, Warangal allowed

the said I.A. No.689 of 2022 vide order dated 22.07.2022. Aggrieved by the said

order dated 22.07.2022 in I.A. No.689 of 2022, the petitioners filed Civil Revision

Petition vide CRP No.1873 of 2022. The High Court granted an interim order dated

11.11.2022 noting that the Court below could not have appointed the advocate

commissioner without the respondent No.1 society taking a decision to grant

lease/license and prima facie found that the order of the court below was

unsustainable.

CRP_2499_2023 Dr.GRR, J

2.2 The court further granted liberty to the respondent to file a fresh

application before the court below enclosing therewith all the relevant documents to

substantiate its claim for seeking appointment of an Advocate Commissioner to

supervise the auction process. Thereafter, the respondents 1 to 9 filed I.A.No. 818

of 2023 under Section 151 of CPC praying to appoint an Officer/Commissioner to

supervise the procedure of lease/license granting to higher bidder in the auction of

granting lease/license of portion 1 and 2 block as mentioned in the schedule of the

Petition. Along with the said I.A.No.818 of 2023, the respondents 1 to 9 filed

documents dated 12.04.2023, which was a notice of meeting to be held on

26.04.2023 at 7:30 PM with an agenda to discuss the lease of the college building

and Minutes of Meeting of the Managing Committee held on 26.04.2023. The same

were false and fabricated documents recorded by respondents 2 to 8, as the members

to have attended. The counsel for the petitioner vehemently objected marking of the

said documents. During the course of enquiry in I.A.No.818 of 2023 on 10.08.2023,

the respondents 1 to 9 filed the documents such as, Notice of Meeting dated

13.01.2021, Minutes of Meeting dated 30.01.2021, Notice of Meeting dated

23.02.2021 and Minutes of Meeting dated 10.04.2021 and contended that the

documents filed on 10.08.2023 were filed as per the observations and liberty given

by this Court in CRP No. 1837/2022 and stated that a separate petition to receive

them was not necessary and sought to mark the said four documents. Inspite of the

objections of the petitioners that the provisions of Order VIII Rule 1-A of C.P.C.

CRP_2499_2023 Dr.GRR, J

had not been complied, the trial court i.e., the Principal District Judge,

Hanumakonda had marked the above documents as Exs.P1 to P4.

3. Aggrieved by the said order, the petitioners preferred this revision

contending that the documents marked as Exs.P1 to P4 were not referred to in the

pleadings and no notice of the same has been given to the petitioners 1, 3 and

defendant No.12. The liberty granted to the respondents was to file the said

documents with necessary petition. The Court below ought to have returned the

documents as they were marked with a mere List of Document Memo and no

Affidavit or appropriate petition was filed. The court below ought to have looked

into the relevancy and genuinity of the documents before marking the same. The

petitioner could not give a go-by to the mandatory statutory requirements. The

documents relied by the respondents 1 to 9 ought to have been filed through a

petition under Order VIII Rule 1-A of C.P.C. upon obtaining the leave of the court.

The order passed by the court below was cryptic without any reasoning and prayed

to allow the Civil Revision Petition by setting aside the order dated 18.08.2023 in

I.A.No.818 of 2023 in O.S.No.159 of 2017 passed by the learned Principal District

Judge, Hanumakonda.

4. Heard Sri Venkatesh, learned Senior Counsel representing Sri S.

Ashok Reddy, learned counsel for the petitioners on record and Sri M.N. Narasimha CRP_2499_2023 Dr.GRR, J

Reddy, learned counsel for the respondents 1 to 7 and Sri S. Bhoopal Reddy, learned

counsel for respondent No.11.

5. Learned Senior Counsel representing the petitioners submitted that the

court below had not followed the mandatory provisions under Order VIII Rule 1A

of C.P.C.. The documents are filed along with a memo, as such, the petitioners had

lost an opportunity to file counter and to record their objections. The High Court

had not directed the trial court to dispense with the procedure prescribed while

granting liberty to file a fresh application at the time of filing the said documents on

record. No explanation was given by the respondents as to why the said documents

could not be filed along with the pleadings. It was a matter of right for the

respondents to object and oppose receipt of documents and relied upon the

judgments of the High Court of Andhra Pradesh in Katakam Viswanthan Vs.

Katakam China Srirama Murthy and Ors. 1, Abdul Khader @ Abdul Rauf &

Ors. Vs. Aktharunnisa Begum (died) by LRs. & Ors. 2, B. Ramasubba Reddy

and another Vs. Y. Ramakrishna Reddy and another 3 and also relied upon the

judgment of the Hon'ble Apex Court in Dewanti Devi and Others Vs.

Radheshyam Tiwary and Others 4.

AIR 2004 AP 522

2004(2) A.P.L.J. 80

(2009) 1 ALD 279

2019 SCC OnLine Pat 28 CRP_2499_2023 Dr.GRR, J

6. Learned counsel for the respondents on the other hand contended that

Order VIII Rule 1A of C.P.C. was not applicable to interlocutory applications. The

documents filed were relevant only to decide the I.A., but not the suit claim. Only

as per the order of this Court in C.R.P.No.1872 of 2022, the above documents were

filed. The learned Principal District Judge, Warangal on considering all these

aspects only allowed the I.A.No.818 of 2023 and prayed to dismiss the Civil

Revision Petition.

7. Now the point for consideration in this C.R.P. is:

Whether leave has to be obtained by the respondents 1 to 9 before filing the above documents?

8. As the learned counsel for the respondents was contending that they

filed the above documents as per the orders in C.R.P.No.1873 of 2022 dated

30.12.2022, it is considered necessary to extract the orders in C.R.P.No.1873 of

2022. C.R.P. 1873 of 2022 was filed against the order in I.A.No.689 of 2022 in

O.S.No.159 of 2017 whereby the Principal District Judge, Hanumakonda appointed

an Advocate Commissioner to supervise the auction of granting lease/license and to

supervise the execution of agreement of lease/license of the respondent No.1

society. This Court while allowing the C.R.P. by setting aside the order of the

Principal District Judge, Hanumakonda in I.A.No.689 of 2022 in O.S.No.159 of

2017 observed that:

CRP_2499_2023 Dr.GRR, J

"However, having regard to the fact of the stand taken by the respondent that there were resolutions passed by the 1st respondent society to grant lease/license of the premises in favour of the highest bidders, this Court is of the view that instead of remitting the matter back to the court below for fresh consideration, the respondents can be permitted to move the court below afresh by placing the said documents on record."

9. The court granted liberty to the respondent to file a fresh application

before the Court below enclosing therewith all the relevant documents to

substantiate its claim for seeking appointment of an Advocate Commissioner to

supervise the auction process. Mere granting of the liberty to the respondent to

place the documents on record before the court below does not mean that the

respondent could give a go by to the mandatory statutory requirements.

10. The High Court of Andhra Pradesh in Katakam Viswanthan Vs.

Katakam China Srirama Murthy and Ors. (1 supra) while considering Order VII

Rule 14 and Order XIII Rule 1 of C.P.C. observed that:

"5. An analysis of the scheme of Order 7 discloses the following:

Order 7 deals with the plaint, the contents of the plaint, return or rejection of the plaint etc. Rule 14 mandates that whenever a plaintiff sues upon a document or relies upon a document as the basis of his claim in the suit, the document is required to be delivered to the Court along with the plaint if the said document is in possession of the plaintiff. Rule 2 provides for the contingency where such a CRP_2499_2023 Dr.GRR, J

document is not in the possession or power of the plaintiff the said sub-rule stipulates that the plaintiff has disclosed as to in whose possession such a document is. Sub-rule (3) creates an embargo on the reception of any such document in evidence which is not produced along with the plaint in accordance with the provision contained under Rule 14(1) unless the leave of the Court is granted.

6. The Code of Civil Procedure also deals with the filing of documents which are evidence in support of the claim in the suit. The relevant provision is Order XIII Rule 1 in this context. Order XIII Rule 1 reads as follows:

"ORDER XIII PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS - Rule 1:

Original documents to be produced at or before the settlement of issues.-The parties or their pleaders shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.

On an examination of the rule, it can be seen that O. 13, R. 1 deals with those documents which are only evidence in support of the claim, but not the documents which are the basis of the claim. The said rule also mandates that all such documentary evidence relied upon by either party in support of their respective plea to be filed along with the pleading."

7. Clearly there is a distinction between the nature of the documents covered under O. 7, R. 14 and O.

13, R.1. A document filed under O. XIII. R. 1 as a piece of evidence in support of the claim of one of the parties to the suit filed along with the pleading may eventually be proved or may not be proved by the concerned party depending upon the issues CRP_2499_2023 Dr.GRR, J

involved in the suit. Order 13 R.1 deals with only reception of the documents by the Court as part of the record of the suit. It does not deal with reception of the document as a piece of evidence. Rule 13 deals with a stage prior to the reception of the evidence in the suit. Whereas O.7, R.14 deals with different situation altogether. There is a clear embargo on the reception of a document in evidence, which forms the basis of the suit and filed by the plaintiff along with the plaint, but not filed. The Court of course is vested with the discretion under Sub-rule (3) of R. 14 to receive any such document contemplated under R. 14() at a belated stage by granting leave. Though the Code is not very express as to the parameters in exercising the discretion of granting leave, it goes without saying that such discretion must be exercised in accordance with the established principles of law. It cannot be said to be an irrelevant consideration while dealing with an application under O. 14, R.3 for the Court to examine whether the document sought to be tendered in evidence during the course of the trial of the suit by the plaintiff is a legally admissible document or not."

11. In Abdul Khader @ Abdul Rauf & Ors. Vs. Aktharunnisa Begum

(died) by LRs. & Ors. (2 supra), wherein also the trial court received the

documents as per the remand order made by the appellate court along with a memo,

the High Court of Andhra Pradesh held that:

9. Several of the aspects which had been discussed by the learned Judge tracing the historical background of the litigation may not be much relevant for the purpose of disposing of the present civil revision petition. Order 7 Rule 14(3) of the Code, as substituted by Act 22 of 2002, reads as hereunder:

CRP_2499_2023 Dr.GRR, J

"A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit."

Under Section 16 of the Code of Civil Procedure Amendment Act, 2002, Act 22 of 2002, nothing had been specified about this provision and hence irrespective of the date of institution of the suit it should be taken that to all the proceedings the said provision is applicable. The main ground of attack of the Counsel for the respondents is that inasmuch as the documents had been received by virtue of a remand order made by the Appellate Court, the reception of documents even with a memo can be definitely justified. In the light of the specific provision referred to supra, I am not inclined to accept with the said contention. It is no doubt true that the learned Judge may exercise discretion of receiving the documents especially in, the light of the remand order, provided the documents are produced before the Court in accordance with the procedure specified under the provisions of the Code and not otherwise. It is made clear that reception of documents in an Original Suit at a belated stage just by way of a memo definitely should be deprecated. Even for obtaining leave, reasons are to be explained. Hence, in this view of the matter, in my considered opinion, the impugned order cannot be sustained.

12. The court deprecated the filing of the documents along with a memo

and specified that reasons have to be given for obtaining leave, even though the

documents were filed by virtue of a remand order made by the appellate court.

CRP_2499_2023 Dr.GRR, J

13. In B. Ramasubba Reddy and another Vs. Y. Ramakrishna Reddy

and another (3 supra), the Court observed that:

"...the concerned party is under obligation to assign satisfactory reasons, The Court is also under obligation to take into account, the reasons pleaded by the petitioner in the LA. and the resistance offered by the respondent to that application. It is not necessary that on every application, a detailed order running into several pages be passed. At the same time, the Court cannot reduce the exercise of disposal of applications to an empty formality. Once respective stands of the parties are reflected in the affidavit and counter, they are required to be noted at least in a precise form. Howsoever accurate, the nature of disposal may be, a cryptic order does not subserve the purpose."

14. The Hon'ble Apex Court in Dewanti Devi and Others Vs.

Radheshyam Tiwary and Others (4 supra) also held that:

"6. Order 8 Rule 1A(3) of the CPC provides that the documents, which have not been produced along with the written statement, cannot be produced to the court later on without the leave of the court. Thus, if a document is to be produced by a defendant, the same is to be produced with the written statement. Subsequent production of document can be done only if the court is satisfied with the grounds explained for non-production of the documents at the time of filing of the written statement."

15. The respondents-defendants 1 to 9 need to file a petition under Order

VIII Rule 1A of C.P.C. for filing the documents which were not filed along with the CRP_2499_2023 Dr.GRR, J

written statement, but ought not to have filed through a memo. This Court while

disposing the C.R.P.No.1873 of 2022 had not given liberty to the respondents to file

the documents before the court below without following the required procedure,

without filing appropriate petitions and affidavits stating the reasons for not filing

the same along with the written statement.

16. The contention of the learned counsel for the respondents that Order

VIII Rule 1A was not applicable to interlocutory applications was not valid, in view

of Section 141 of C.P.C., wherein it was prescribed that:

"141. Miscellaneous proceedings.-- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

[Explanation.-- In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceedings under article 226 of the Constitution.]"

17. Thus, what is prescribed under Section 141 of C.P.C. is that the

procedure laid down in the Code in regard to suits is to be followed in all the

proceedings including interlocutory applications. As such, this Court considers it fit

to set aside the order in I.A.No.818 of 2023 in O.S.No.159 of 2017 passed by the

learned Principal District Judge dated 18.08.2023 and direct the respondents to file

the documents by following the procedure prescribed under law.

CRP_2499_2023 Dr.GRR, J

18. Accordingly, this Civil Revision Petition is allowed setting aside the

order dated 18.08.2023 in I.A.No.818 of 2023 in O.S.No.159 of 2017 passed by the

learned Principal District Judge, Warangal.

Miscellaneous petitions, if any pending shall stand closed.

_____________________ Dr. G. RADHA RANI, J October 10th, 2023 ss