Telangana High Court
Smt Gourineni Shanti vs B. Prithviraj on 29 April, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITON Nos.898 and 909 of 2023
COMMON ORDER:
Since the parties and the issue involved in both the Civil
Revision Petitions are one and the same, they are heard together
and being disposed of by Common order.
2. Civil Revision Petition Nos.898 and 909 of 2023 are filed
challenging the orders dated 13.03.2023 passed by the
II Additional District Judge, Medchal in I.A.No.103 of 2023 in
O.S.No.651 of 2006 and I.A.No.104 of 2023 in O.S.No.652 of
2006, respectively.
3. By the impugned orders, the aforesaid applications filed by
plaintiff No.1 under Order IX Rule 7 CPC praying the Court to set
aside orders dated 31.12.20219 and to permit her to give evidence
were dismissed.
4. Heard Sri S.Malla Rao, learned counsel for the petitioner,
and Sri A.Venkatesh, learned senior counsel representing
Ms. Velimeni Manognya, learned counsel for respondent Nos.2
and Sri G.Arun, learned counsel for respondent No.3. Perused the
entire material available on record.
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5. In both the Revision Petitions, the petitioner is plaintiff
No.1, respondent No.1 is plaintiff No.2 and respondent Nos.2 to 4
are defendant Nos.1 to 3 in the suit. For convenience, hereinafter
the parties will be referred to as arrayed in the suit.
6. Perusal of the record indicates that originally, plaintiff No.1
had instituted two suits-O.S.Nos.651 and 652 of 2006 seeking
specific performance and permanent injunction in respect of the
suit schedule property against defendant No.1. Initially, defendant
No.1 was set ex parte on 12.03.2007 for non-filing of written
statement. Plaintiff No.1 filed her evidence as P.W-1 on
14.08.2007 and was completed on 29.08.2007. Later, on
06.10.2007, defendant No.1 filed applications to set-aside ex parte
orders, dated 12.03.2007, along with his written statements. The
said applications were allowed on 23.07.2008 and defendant No.1
filed his written statements in both the suits.
7. Based on the pleadings of plaintiff No.1 and the original
defendant i.e., defendant No.1, on 16.09.2008, the trial court
framed six (6) issues to be decided during the trial. Subsequently,
during the pendency of the said suits, the suit schedule properties
were sold to third parties and the alleged purchasers were
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impleaded as defendant Nos.2 and 3 in the suits vide order dated
26.12.2009. Similarly, as plaintiff No.1 had executed an
assignment deed in favour of respondent No.1 herein, he was
impleaded as plaintiff No.2 on 04.11.2011 and the plaints in both
the suits were amended and defendant No.1 filed his additional
written statements on 08.10.2012.
8. The trial court posted the matters for trial on 05.12.2012. On
the said date, the chief examination affidavits filed by plaintiff
No.1 earlier were recorded as filed and the matters were posted for
marking of documents on 18.12.2012. Subsequently, on
22.07.2013, plaintiff No.2 was examined in part. On 31.12.2019,
the trial court noticing that plaintiff No.1 as PW-1 has failed to
appear for cross examination by defendant Nos.1 to 3 since long
time, eschewed her evidence i.e., her chief examination affidavit
recorded on 05.12.2012 along with the documents marked. The
said orders are under challenge in the present Revision Petitions.
9. Learned counsel for the petitioner contended that the trial
Court erred in holding that the petitioner is estopped from seeking
recall of the orders under revision and the trial Court has not given
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any cogent reason while dismissing the applications and prayed
this Court to allow these Revisions.
10. On the other hand, learned counsel appearing for the
respondents contended that the trial Court, taking into account the
facts and circumstances of the cases, rightly dismissed the
applications by giving cogent and convincing reasons and
therefore, the impugned orders need no interference by this Court.
11. Learned counsel for the petitioner relied upon the
judgment of the High Court of Andhra Pradesh at Amaravati in
Makam Leela Kumari Vs. Gurram Jaya Lakshumma 1, wherein it
is held as under:-
"If at all the petitioner did not turn up on date given to
lead additional evidence for which the I.As were allowed,
at best, the trial Court could have closed the opportunity
to lead the additional evidence, but it cannot eschew the
evidence earlier recorded, since it is nothing to do with
the additional evidence."
12. In the instant cases, it is to be seen that plaintiff No.1
herself filed memos and also applications seeking to eschew her
evidence. Therefore, the aforesaid judgment relied upon by the
2023(6) ALT 16 (AP)
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learned counsel for the petitioner is not applicable to the present
cases and it is of no aid to the petitioner/plaintiff No.1.
13. Learned counsel for the respondents relied upon the
judgment of the erstwhile High Court of Andhra Pradesh in
Devarapathi Pattabhi Ramaiah Vs. DaruhiriLakshmi Presanna
and others 2 and the judgment of the High Court of Madras in
M.Kumar Vs. S.Subbaiah and others 3.
14. The aforesaid judgments were rendered in altogether
different facts and circumstances and as such, they have no
relevance to the present Revisions.
15. The evidence of P.W-1 was eschewed by the trial Court on
31.12.2019 and plaintiff No.1 filed applications on 23.01.2023 to
set aside the orders dated 31.12.2019, which is per se at belated
stage, and in the interregnum, much water has flown under the
bridge. For better appreciation, the sequence of events/dates is
narrated hereunder:-
(1) The plaintiff's evidence was treated as closed on
22.03.2021;
MANU/AP/0306/1998
MANU/TN/1760/2008
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(2) By order dated 23.11.2021, the evidence on behalf of
plaintiff was reopened, which was treated as closed on
22.03.2021;
(3) On 27.01.2022, defendant Nos.2 and 3 filed their respective
written statements;
(4) On 21.02.2022, additional issues were framed in both the
suits;
(5) On 29.03.2022, memos filed by plaintiff No.1 seeking
permission to file fresh-chief affidavit on all issues by
eschewing earlier chief affidavits were allowed by trial
Court;
(6) The orders dated 29.03.2022 were carried in Revision by the
defendants before this Court, vide CRP.Nos.1388 and 1401
of 2022 and the said CRPs were allowed vide orders dated
11.08.2022, by observing that plaintiff No.1 ought to have
filed Interlocutory Application(s) seeking appropriate
remedy, instead of filing memos;
(7) Pursuant to the orders dated 11.08.2022 of this Court in
CRP.Nos.1388 and 1401 of 2022, plaintiff No.1 filed
I.A.No.339 of 2022 in O.S.No.651 of 2006 and I.A.No.341
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of 2022 in O.S.No.652 of 2006 seeking permission to file
chief-examination affidavits by eschewing her earlier chief
examination affidavits;
(8) By orders dated 21.11.2022, the trial Court dismissed the
said applications; and
(9) Challenging the orders dated 21.11.2022, plaintiff No.1
filed CRP.Nos.2999 and 3000 of 2022 and the said
Revisions were dismissed by this court vide order dated
27.01.2023, clarifying that plaintiff No.1 is not permitted to
lead evidence afresh altogether, but, she is permitted her to
lead evidence on the additional issues.
(10) Pursuant to common order dated 27.01.2023 of this Court
in CRP.Nos.2999 and 3000 of 2022, plaintiff No.1 filed
evidence affidavits on the additional issues.
16. Now, in the present Revision Petitions, plaintiff No.1 seeks
to set aside the orders dated 31.12.2019 passed in both the suits by
which, her evidence was eschewed and to permit her to give
evidence in support of her case.
17. From a perusal of the chronological events narrated above,
it is obvious that the evidence of plaintiff No.1 was eschewed by
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the trial Court by orders dated 31.12.2019. However, she filed
memos seeking permission to eschew her evidence which was
already eschewed and the same were allowed by the trial Court on
29.03.2022. However, on Revision, the said orders of the trial
Court were set aside by this Court permitting plaintiff No.1 to file
appropriate application/s for the relief claimed. Pursuant to the
same, plaintiff No.1 filed I.A.Nos.339 and 341 of 2002 in
O.S.Nos.651 and 652 of 2006 respectively, seeking to eschew her
earlier chief examination affidavits and to permit her to file fresh
chief affidavits on all the issues in both the suits. The said
applications were dismissed by the trial Court.
18. The second limb of the relief sought for in I.A.Nos.339
and 341 of 2022, which is akin to the relief sought for in the second
limb of prayer in I.A.Nos.103 and 104 of 2023, i.e., "to permit
plaintiff No.1 to file fresh chief affidavit on all issues", is not as
innocuous as it appears to be. The suits were filed in the year 2006
and the evidence affidavits of plaintiff No.1 filed in lieu of her
chief examination were taken on record on 05.12.2012. Here, at the
cost of repetition, it is to be noted that after the said date, much
water has flown under the bridge, i.e., defendant Nos.2 and 3 have
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filed their written statements; that additional issues were framed;
that P.Ws.2 and 3 were examined on behalf of plaintiff No.1; that
P.W-1 has filed her evidence affidavits on the additional issues;
and that P.Ws.1 and 3 were also cross-examined on different dates.
19. A close scrutiny of the record reveals that plaintiff No.1
filed memos and applications to eschew her earlier chief
examination and to permit her to file fresh chief examination
affidavits on all the aspects, when the orders dated 31.12.2019
eschewing her evidence as P.W-1 are subsisting, as indicated
above. Having failed in her attempts to get the said memos and
interlocutory applications ordered, she filed the present Revision
Petitions against the orders of the trial Court in dismissing the
applications filed seeking to set aside the orders dated 31.12.2019.
Thus, it appears that predominantly, plaintiff No.1 is much
concerned to lead fresh evidence on all the aspects. Even
otherwise, at this juncture, if plaintiff No.1 is permitted to file fresh
chief affidavits on all the issues in both the suits, it would have a
bearing on the proceedings that have taken place in the suits in the
light of the present stage of the suits, i.e., completion of
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examination of P.W.2 and 3 on behalf of plaintiff No.1 and even
cross-examination of P.W-3.
20. Further, the above sequence of proceedings also reflect the
conduct of plaintiff No.1 in filing memos and applications one after
the other to eschew her evidence and to permit her to give fresh
evidence at a belated stage i.e., after examination of P.Ws-2 and
P.W-3, which cannot be appreciated. It is pertinent to note that
plaintiff No.1 has already assigned her rights in favour of plaintiff
No.2 and plaintiff No.2 was already examined as P.W-2.
Therefore, plaintiff No.1 cannot be permitted to give fresh
evidence at this stage. Also, it cannot be brushed aside that plaintiff
No.1 may take advantage of curing the lapses, if any, in her
evidence affidavits based on the pleadings of defendants in the
additional written statements. A party cannot be permitted to
improve her case and fill lacunae, if any, based on the pleadings of
the other party. This course is not permissible under law.
21. When the evidence of plaintiff No.1 was eschewed by
orders dated 31.12.2019, admittedly, she slept over the said orders
and was not diligent enough to take steps in that regard. Further, it
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is to be noted that plaintiff No.1 failed to give cogent and
convincing reasons in support of her applications filed seeking
permission to lead fresh evidence in the suits.
22. In the light of the aforesaid facts and circumstances of the
case and the foregoing discussion, this Court has no hesitation to
hold that plaintiff No.1 has not made out any case to set aside the
impugned orders passed by the trial Court and hence, she is not
entitled to seek indulgence of this Court.
23. Accordingly, both the Civil Revision Petitions are
dismissed. There shall be no order as to costs.
24. Pending miscellaneous applications, if any, shall stand
closed.
__________________________________
JUSTICE LAXMI NARAYANA ALISHETTY
Dated:29.04.2024
dr
