CRP/4563/2013 of MUKKALA MUNNAIAH Vs KOLLI BRAHMANANDA REDDY AND 2 OTHERS on 31 December 2021

COMMON ORDER:

Since both these revision petitions arise out of the same suit and the parties are one and the same, they are heard together and are being disposed of by this common order.

2. These two revision petitions are directed against the interlocutory orders dated 25.07.2013 passed in I.A.No.506 of 2013 and I.A.No.507 of 2013 in O.S.No.182 of 2011 on the file of Additional Senior Civil Judge, Tenali, dismissing the petitions which were filed to reopen the evidence and summon the witness, who is attestor to Ex.A.1/agreement of sale.

3. The learned counsel for the respondents 1 and 2 submitted that he has not filed vakalat in C.R.P.No.4563 of 2013 and sought time. Grant of further time is refused since the matter is of old one and the suit is of the year 2011.

4. Respondents 1 and 2 herein are the defendants/respondents before the trial Court. Respondent No.3 is the co-plaintiff, but was added as a respondent herein and shown as not necessary party.

5. It is the case of the petitioners that since the suit is filed for specific performance of the agreement of sale and the respondents 1 and 2 denied the genuineness of the agreement taking a plea of forgery, it was felt necessary to examine the other attestor who is no other than the father of the first respondent, though another attestor to the said document was already examined as witness.

6. The petition was vehemently opposed by the contesting respondents on the ground that it was filed only to delay the matter and that there is no just or sufficient reason for not examining the said witness at the time when the plaintiff adduced his evidence.

7. The trial Court observed that the petitioner failed to give satisfactory reasons for not examining the witness previously at the time of adducing their evidence. To fortify its observations while declining the opportunity sought by the petitioner, the trial Court relied on the decisions in N.Balaraju Vs. G.Vidyadhar 2004(4) ALD 490 and Kailasa Bhoomaiah Vs. Kailasa Eshwaralingam and others, 1989(1) ALT 487.

8. The learned counsel for the revision petitioner submitted that the petitioner cannot be denied the opportunity just for the sake of laches of the advocate who could not advice the petitioner to examine the other witness as well. He further submitted that there is no question of filling up of the gaps as observed by the trial Court, since it is the burden of the petitioner to prove their case in view of the plea of forgery and submitted that the Court may allow the petitioner to examine the witness by imposing certain costs if felt just and reasonable while allowing the petitions.

9. The learned counsel for the respondents buttressed the observations of the trial Court and further submitted that the petitioner himself reported that they did not have further evidence. He further argued that the petition was very belated and lack of bona fides and devoid of specific purpose for which witness is to be examined.

10. The learned counsel for the respondents placed reliance on the decision in the case of B.Venkat Ram Reddy Vs. K.Srinivas and others[1], in support of his contention that the party who intends to summon such witness has to specifically plead, the context in which the witnesses are to be examined and that a bald statement that it is necessary to examine a witness is not sufficient, the specific and definite purpose for which the witness is 1 2005(2) ALD 735

desired to be examined must be disclosed in the affidavit. In that case, the Court observed that except stating that respondents 4, 5 and 6 are to be examined to elicit real facts, no other purpose was stated and held that it is too difficult to accede to such general and vague request.

11. The learned counsel laid emphasis on the observation of the Court in the case of V.Rajeshwar V. N.Gurucharanam and others[2]that normally all essential facts are to be pleaded and when an essential fact is not pleaded, the question of letting in any evidence in relation to such plea is imperimissible.

12. He further argued that in the case of Thimmaraju Shyama Sunder Rao and another V. Thimmaraju Jittender Rao and others[3], at para 7 it is observed that when the relief is prayed for summoning the witnesses and if just reasons are explained, normally the Courts are expected to permit adducing such evidence, but, here is a case where an application was moved at a belated stage, that too, for the purpose which may not help either of the parties, and that when the Court is satisfied about the irrelevancy of the evidence sought to be adduced by summoning the witnesses, the Court will definitely exercise the discretion of negativing such relief prayed for.

13. He further referred to the decision in Jasti Purnachandra Rao and another V. Jasti Leela Kumari and others[4], wherein the High Court declined to summon a witness observing that after the entire evidence was closed and the arguments on the side of the plaintiff were completed, the application filed by the petitioners for summoning the purchaser under a document as a witness is too belated and the same reflects lack of bona fides of the petitioners.

2 2007(1) ALD 154

3 2007(4) ALD 20

4 2012(3) ALD 50

14. On the other hand, the learned counsel for the revision petitioner has drawn the attention of this Court to para 4 in the case of V.Rajeshwar (2[nd]supra), wherein excerpted the propositions for application of provision under Order 16 Rule 1 CPC were summed up at para 9 in the case of Gopala Krishna Murthy Vs. B.Ramachander and others (AIR 1973 AP 309) as follows:

“A reading of the above authorities leads me to lay down the following propositions:

1) Under Order 16 Rule 1, Civil Procedure Code it is the right of the party at any stage of the suit to make an application to the Court seeking that summons be issued to a witness either to give evidence or to produce documents. the party at any stage of the suit to make an application to the Court seeking that summons be issued to a witness either to give evidence or to produce documents.

2) The Court is not entitled to refuse such an application on the ground that it might cause delay in the trial of the suit on the adjourned date of the suit. ground that it might cause delay in the trial of the suit on the adjourned date of the suit.

3) If the summons is not served by the adjourned date of the suit the party who filed the application to issue the summons would take the risk. the party who filed the application to issue the summons would take the risk.

4) If an application for adjournment is made at the instance of the party who applied under Order 16 Rule 1, Civil Procedure Code it is for the Court to consider whether or not an adjournment should be granted. the party who applied under Order 16 Rule 1, Civil Procedure Code it is for the Court to consider whether or not an adjournment should be granted.

5) The Court may not refuse to order an application under Order 16 Rule 1, Civil Procedure Code on the ground that the evidence, if produced, may not be of any help to the appellant. 16 Rule 1, Civil Procedure Code on the ground that the evidence, if produced, may not be of any help to the appellant.

6) Though Order 16 Rule 1, Civil Procedure Code does not in terms impose any restrictions on the Court, the Court in the exercise of its inherent jurisdiction may refuse to issue summons in an application made under Order 16 Rule 1, Civil Procedure Code in those cases where it is satisfied that the application filed was not bona fide or was vexatious or granting the application would result in an abuse of process of the Court. Except in these three above contingencies the application must almost always be ordered”. terms impose any restrictions on the Court, the Court in the exercise of its inherent jurisdiction may refuse to issue summons in an application made under Order 16 Rule 1, Civil Procedure Code in those cases where it is satisfied that the application filed was not bona fide or was vexatious or granting the application would result in an abuse of process of the Court. Except in these three above contingencies the application must almost always be ordered”.

15. A perusal of the above decisions makes it clear that there is no conflict between the grounds on which authority under Order XVI Rule 1 CPC can be invoked and the decision in the case of Jasti Purna Chandra Rao and another (supra).

16. Each case is to be examined in the light of its facts and circumstances, however in the light of the broad settled principles.

17. In the present case, the revision petitioner seeks to examine one more attesting witness who is no other than the father of R-1 in view of the plea raised by the other side, that is forgery of the agreement of sale basing on which the suit was filed. Ofcourse, another attesting witness was already examined. The plea of forgery is known to the petitioner since the filing of the written statement and thus he is aware at the stage he led evidence as a plaintiff. The reason assigned by the petitioner in seeking to summon the witness at a belated stage is that his counsel, while preparing for the arguments, noticed that it is required to examine the other attestor as well. The propositions laid down by the Supreme Court noted above made it clear that it is the right of the party at any stage of the suit to make an application and that it is also not for the Court to refuse such an application on the ground that it may cause delay in the trial and further the Court may not refuse to order application on the ground that the evidence if produced may not be of any help to the party etc. Moreover, it is made further clear that in summoning the witnesses and the documents, normally the Courts are to be liberal, however a caution is given by adding that the Courts are to be liberal provided the Courts are satisfied that in the facts and circumstances of the case, such applications are bona fide and by non-allowing such applications and by shutting such evidence, prejudice would be caused. It is also noticed that quite often the parties would be moving such applications just to delay the final disposal of the matter and such applications being frivolous, the Courts would be justified in negativing the relief.

18. The facts on record before this Court do not reflect any laches on the part of the petitioner or any mala fide in dragging on the matter. The delay is but for not being properly advised to examine that witness. In the absence of any grounds throwing light on the deliberate omission of the petitioner, there appears no advantage to the petitioner in delaying the matter or prejudice against the respondents for leading such evidence at that stage. To receive evidence on the point in issue for rendering complete justice, the hands of Courts are not tied. Instead of shutting the parties from leading the evidence, a reasonable opportunity can be given, but at the same time some conditions can be imposed to see that there is no delay occurred by granting such permission.

19. As can be seen from the record, the suit was registered in 2011 and the impugned order was passed in 2013. It is not uncommon that the matters before the Civil Courts are pending for more long time than in the present case. Therefore, no reason is seen in the present case as to why in such a hurry manner, the opportunity was declined to the petitioner merely because the petition was filed at the fag end of the case. Moreover, no prejudice is shown to have occurred to the respondents, if permission is accorded to the petitioner to lead such evidence.

20. Under these circumstances, while imposing some terms on the petitioner, an opportunity is given to place the evidence on record.

21. In view of the above discussion, both the revisions are allowed by setting aside the orders in I.A.Nos.506 of 2013 and 507 of 2013 dated 25.07.2013 on the condition that the revision petitioner shall pay Rs.5,000/- to respondents and get ready with necessary steps to be taken immediately. Further, in view of the fact that the suit is of 2011 year, both parties shall assist the Court in speedy disposal of the matter. No costs.

Pending miscellaneous applications, if any, shall stand closed.

Dt.31.12.2021

Note:Issue CC by 07.01.2022. B/o PNV

_______________ B.S.Bhanumathi, J