CRP/4828/2011 of Beena Devi, Vs Vankayala Rama Nageswara Rao, on 30 December 2011

COMMON ORDER:

These two Civil Revision Petitions can bedisposed of by way of this common order as theparties thereto are same and they arise from one andthe same suit.

Civil Revision Petition No.4832 of 2011 isdirected against the order dated 03.03.2011 passedby the learned Principal Junior Civi Judge,Anakapalle, in I.A.No.1050 of 2010 in O.S.No.392 of2004.Civil Revision Petition No.4828 of 2011 isdirected against the order dated 03.03.2011 passedby the learned Principal Junior Civi Judge,Anakapalle, in I.A.No.1051 of 2010 in O.S.No.392 of2004.

The revision petitioner herein is the first defendant and the second respondent herein is thesecond defendant in the aforesaid. The firstrespondent herein is the plaintiff who instituted thesaid suit seeking eviction of the defendants from thesuit schedule property, and consequential delivery ofvacant possession thereof.

For the sake of convenience, the parties hereinare referred to as per their array before the trial Court.

Both the defendants jointly filed a writtenstatement denying the claim of the plaintiff. Thesecond defendant was examined as D.W.1 andcross-examined on 23.07.2010. Thereafter, itappears that the suit was posted to 02.08.2010 forfurther evidence of the defendants. As the defendantswere called absent, it was adjourned to 06.08.2010, 10.08.2010, 01.09.2010, 02.09.2010 and finally on14.09.2010. As the defendants did not choose toadduce further evidence, the evidence on their sidewas closed and the suit was posted for arguments on23.09.2010.

As the matter stood thus, on 23.09.2010 the firstdefendant filed two applications in the suit, namely,I.A.No.1050 of 2010 under Section 151 CPC seekingto reopen the suit in order to adduce her evidenceinter alia on the ground that she could not adduce herevidence as she went to her native place – Siyana ofRajasthan State and came back on 16.09.2010 andthat she has good grounds to defend her case; andI.A.No.1051 of 2010 under Section 45 of theEvidence Act read with Section 151 CPC requestingto send Ex.A.1 lease agreement dated 01.08.2002 forcomparison of signatures appearing therein with thatof her admitted signatures to a Handwriting Expert atForensic Science Laboratory, Hyderabad, on thepremise that her signatures appearing on the Ex.A.1lease agreement were forged. Both theseapplications came to be dismissed by the impugnedorders. Hence, these two Civil Revision Petitions.

Heard the learned counsel on side.

The learned counsel for the revisionpetitioner/first defendant submitted that it has been specifically pleaded in their written statement that thesignature of the first defendant appearing on Ex.A.1lease agreement was forged one. He furthersubmitted that the first defendant has good groundsto defend her case. He also pointed out that as thefirst defendant was out of station having gone to hernative place, she could neither adduce her evidencenor appear before the trial Court on the relevant datesand therefore the applications filed by her may beallowed. He therefore prayed that both the revisionpetitions deserve to be allowed. In support of hiscontentions, he placed reliance on a Judgment of thisCourt in KOLLI RANGA RAO v. KOLLIVARALAKSHMI JANANI [2011 (4) ALT 252].

On the contrary, the learned counsel for the firstrespondent/plaintiff submitted that the first defendantfailed to appear on several occasions before the trialCourt and did not even choose to adduce herevidence and that after a long lapse of time, moreparticularly once the suit is posted for arguments,both the applications came to be filed with a view toprotract the suit proceedings and nothing else. Hefurther submitted that the trial Court considered theseapplications in the proper perspective and rightlydismissed the same which do not warrantinterference by this Court in these revision petitions.

Perused the case files scrupulously.

As can be seen from the material placed onrecord and impugned orders, it is clear that the firstdefendant did not appear before the trial Court onmore than five occasions consecutively, once D.W.1,who was the second defendant, was cross-examinedon 23.07.2011 and when the suit was coming up forfurther evidence of defendants. Under thecircumstances, the suit was posted for arguments on23.09.2010. However, on 23.09.2010 the firstdefendant filed two applications in the suit - oneseeking to reopen the suit for adducing her evidenceand the other seeking to send her admittedsignatures appearing on Ex.A.1 lease agreement to aHandwriting Expert in order to expose the allegedfraud played by the plaintiff against her in institutingthe suit. Apparently, there is delay on her part in filingthose applications. However, her explanation for thesaid delay in approaching the Court and her failure toattend the Court on more than five occasions, aspointed out by the trial Court under the impugnedorders, is that as she had been to her native place,namely, Siyana in Rajasthan State, she could not doso. But her plea consistently is that her signatureappearing on Ex.A.1 lease agreement was forgedand that she has good grounds to defend her case.

Looking into the facts and circumstances of thecase, as noticed hereinabove and with the object ofdoing substantial justice to the parties to suit, areasonable cause has been shown by the firstdefendant in her failure to attend the Court and infiling the above two applications. Further,technicalities of law cannot prevent the Court fromdoing substantial justice. Therefore, I am of the firmview that both the applications filed by her are liableto be allowed by ordering payment of costs to theother side as dismissal the applications of this natureon technical grounds of delay would not, in any way,advance the interests of justice but admittedly, resultin failure of justice.

In KOLLI RANGA RAO v. KOLLIVARALAKSHMI JANANI (referred to supra), alearned Judge of this Court in a similar fact situationtook a similar view relying on the Judgment of theSupreme Court as well as the Judgments of thisCourt and held thus:

“17. It is clear that, the respondents havetaken seven or eight adjournments for adducingtheir evidence and for the delay caused bythem, the Court ought to have imposedreasonable costs. While passing orders oninterlocutory applications, generally, the Courtshould avoid making comments on the merits of

Conclusion

the case and as to whether the evidenceadduced by one party is trustworthy or not andwhether the evidence of any particular witnessis shaken or not, such observations appear tobe not necessary and moreover, create areasonable apprehension in the mind of a partyand therefore, it is always better to avoid suchcomments. Though the power of the Courts tosend a document to an expert under Section 45of the Act is a discretionary power, the Courtshave to exercise the discretion in a just andreasonable manner and if there are any lapseson the part of the party, the Court may considerthose lapses but merely because there aresome latches or some delay on the part of aparty, that should not come in the way ofrejecting their claim. Point No.1 is answeredaccordingly.”

Ultimately, the learned Judge allowed the CivilRevision Petition in that case and consequentlyinterlocutory applications filed by the revisionpetitioners therein were also allowed, of course, byawarding costs to the other side.

Coming to the case on hand, by reopening theevidence, as can be seen from the record, noprejudice would be caused to the plaintiff. Further,even if the disputed signature appearing on Ex.A.1lease agreement with that of the admitted signature ofthe first respondent is sent to a Handwriting Expert assought for by her, equally no prejudice would be caused to the plaintiff for the simple reason that anopinion of such expert cannot be conclusive and it isonly an important piece of evidence to hold whetherEx.A.1 lease agreement is forged one or otherwise.

For the foregoing reasons, both the CivilRevision Petitions are allowed. Consequently,I.A.No.1050 and 1051 of 2010 in O.S.No.392 of 2004filed before the trial Court shall stand allowed.Keeping in mind the fact that the first respondentfailed to appear before the trial Court on more thanfive occasions, she is directed to pay costs ofRs.1,000/- (Rupees one thousand) in eachapplication, in all Rs.2,000/- (Rupees two thousand),to the other side.

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JUSTICE ASHUTOSH MOHUNTA

Dated 30[th] December, 2011.Msnro