CRP/3309/2019 of PETA ZIKRIYA Vs PEREDDY RAMANA REDDY on 31 December 2019

ORDER:

Assailing the order dated 23.09.2019, passed in I.A.No.117 of 2019 in O.S.No.17 of 2017, on the file of Senior Civil Judge Court, Nandikotkur,Kurnool District, the present revision petition is filed.

The revision petitioner is the defendant in O.S.No.17 of 2017, which was filed against him by the respondent for recovery of money due to him based on the suit pronote said to be executed in his favour on 29.05.2014.

The revision petitioner’s contention is that in the suit filed against him, his name is showed as “Peta Jakriya” and that his name is not “Peta Jakriya” and his name is “Peta Zikriya”; the suit pronote dated 29.05.2014, has not been executed by this revision petitioner. In order to establish his defence in the suit that his name is “Peta Zikriya”, he has filed two registered sale deed document bearing Nos.2843 of 2011 dated 12.08.2011 executed in his favour by Kaleem Basha and 339 of 2012 dated 03.02.2012, executed by K. Subba Reddy in his favour. To prove his plea of defence that his name is “Peta Zikriya”, an application under Order VIII Rule 1A of C.P.C was filed before the Court below and the same has been rejected. Being aggrieved by the order so passed by the Court below rejecting his request made to receive the aforementioned documents in proof of his plea of defence, he has filed the present revision.

The order impugned reveals that while the main case was at the stage of recording the evidence of the defendant, petition under Order VIII Rule 1A of C.P.C, was filed by the revision petitioner/defendant seeking the following relief:

“For the reasons stated in the accompanying affidavit, it is prayed that the Hon’ble Court may be pleaded to receive the petition schedule documents filed on behalf of the petitioner herein in O.S.No.17 of 2017, in the interest of justice.”

From the aforementioned factual aspects, it is understood that while the case was at the stage of recording the evidence of the defendant (revision petitioner herein), the present interlocutory application was filed for change of his name in the cause title portion and in support of his plea raising as to change of his name to “Peta Zikriya”, he produced certain documents viz., two registered sale deed document bearing Nos.2843 of 2011 dated 12.08.2011 executed in his favour by Kaleem Basha and the document No.339 of 2012 dated 03.02.2012, executed by K. Subba Reddy in his favour.

In the written statement copy, which is placed before the Court no where it is stated by the petitioner that his name is “Peta Zikriya”. It is not apparent from the contents of written statement that no plea whatsoever is made disputing his name mentioned in the plaint. No whisper is made in the written statement that his name is not “Peta Jakriya”. The only defence taken in the written statement is that the suit pronote is fabricated and created due to his ill feelings in collusion with one Anki Reddy and that the said suit pronote is not executed by him.

Sub Rule 1A of Order VIII of C.P.C under which provision of law the interlocutory application is filed to receive the above mentioned documents in evidence reads as under:

“1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him- (1) where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.”

Sub Clause (2) of Order VIII of C.P.C reads as under:

“Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.”

The sale deed copies which the petitioner intends to bring on record now to prove his plea of defence were admittedly executed in his favour in the year 2011 and 2012. In the written statement filed by the petitioner on 09.08.2018, no plea is raised denying his name mentioned in the plaint except denying of the execution of the suit pronote, and that the suit pronote is created due to ill feelings in collusion with one Mr. Anki Reddy.

As per Clause (1) of Rule 1A, the documents upon which the defendant intends to rely in support of his defence or claim for set of are to be filed along with the written statement. As per Sub Rule 2 of Rule 1A of Order VIII of C.P.C “where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is”.

In the affidavit annexed to the petition which is rejected by the Court below, a new stand is taken as regard to the name of the petitioner. Mere mentioning of a ground in the affidavit that the original sale deeds are misplaced and non filing of the documents is neither wilful nor deliberate is not suffice to seek leave of this Court at later stage.

The Court below having regard to the legal position enumerated in Order VIII Rule 1A C.P.C has rightly refused to receive the documents which petitioner intends to bring on record in support of his intended plea of defence.

In view of the above discussions, the revision petition is dismissed.

No order as to costs.

Consequently, miscellaneous petitions pending, if any, shall also stand disposed of.

________________

J. UMA DEVI, J Date.31.12.2019. Gk

Gk.

THE HON'BLE Ms. JUSTICE J. UMA DEVI

CIVIL REVISION PETITION No.3309 OF 2019.

Date:31.12.2019.