Balasani Lingam vs Adepu Bhadrachalam

This Civil Revision Petition has been filed against the common order of the Principal District and Sessions Judge, Rajanna Sircilla, dated 23.11.2023 in I.A.Nos.413, 414, 416 & 415 of 2023 in O.S.No.20/2017.

Brief facts leading to the filing of the present Civil Revision Petition are that the petitioner is the defendant No.1 in the Suit and the respondents No.1 and 2 are the plaintiffs while respondents No.3 to 10 are the defendants No.2 to 10 in the suit. The suit was filed by the plaintiffs for the relief of specific performance of an agreement of sale.

The case of the plaintiffs is that the defendant No.1 in the suit was the exclusive owner and possessor of Ac.2-15 gts., of agricultural land in Survey Nos.553 & 554 of Sarampalli Village of Thangallapalli Mandal of Rajanna Sircilla District. It is submitted that the said defendant offered to sell the suit land to the plaintiffs for a consideration of Rs.85 lakhs and the plaintiffs agreed to purchase the same and entered into an unregistered agreement of sale for the said transaction. It is  submitted that according to the agreement of sale, the defendant agreed to sell 95 guntas of land to the plaintiffs for a total consideration of Rs.85 lakhs and defendant further agreed that if there is an excess land available after measurement on the spot, the said excess land would also go to the plaintiffs and further that the defendant agreed to execute a regular registered sale deed in favour of the plaintiffs at their expense, as per the extent shown in his pass books. It is submitted that at the time of executing the agreement of sale, the plaintiffs paid an amount of Rs.3,11,000/- in cash as advance, out of which Rs.50,000/-was adjusted towards part of sale consideration, which was transferred earlier, to the defendant’s account on 24.06.2014 through NEFT No.AN169652 and thereafter, the plaintiffs have given a cheque of Rs.1,50,000/- vide cheque bearing No.169656, dated 04.07.2014 and a sum of Rs.5,00,000/- was paid to the defendant through NEFT on 08.07.2014 and Rs.1,50,000/- through cheque bearing No.62980, dated 19.07.2014 and Rs.3,00,000/- through cheque bearing No.000123, dated 10.10.2014 and Rs.2,00,000/- through cheque bearing No.000124, dated 10.10.2014 and Rs.4,00,000/- on 18.11.2014 and Rs.20,000/- cash transferred to his servant’s account by name Vennala G.Raju vide Account No.20241330592 and Rs.15,000/- deposited in the account of the defendant on 17.04.2015 and thus, a total amount of Rs.20,96,000/- was paid to the defendant. It is submitted that, thereafter, plaintiffs approached the defendant to receive balance sale consideration and register the property in their favour, but the defendant, time and again, postponed the same as the defendant had developed ill-intentions and was trying to sell the said property to third persons. It is submitted that the plaintiffs therefore, have issued a legal notice on 15.07.2016 for execution of registered sale deeds in their favour and since there was no response from him, the suit was filed for specific performance of the agreement of sale.

A written statement has been filed by the defendant in the suit, denying the allegations made in the suit and the evidence of PW1 as well as DW1 was recorded. It was at this stage, that the plaintiffs have filed the I.A.No.413 of 2023 under order 7 Rule 14(3) r/w Sec.151 of C.P.C. seeking to receive the petition mentioned documents and mark them as exhibits. The plaintiffs also filed I.A.No.414 of 2023 under Section 151 of C.P.C. praying to re-open the evidence of PW1 for the purpose of marking the documents filed in I.A.No.413 of 2023. The I.A.No.416 of 2023 was filed under Order 18 Rule 17 of C.P.C. praying to recall the evidence of PW1 for the purpose of marking documents filed in I.A.No.413 of 2023. The I.A.No.415 of 2023 was filed under Order 6 Rule 1 & 5 of C.P.C. praying to summon the Bank Manager, for giving evidence on behalf of the plaintiffs.

The said I.As., were opposed by the defendant by filing the counter affidavits and after considering the entire material on record, the Principal District and Sessions Judge, vide orders dated 23.11.2023, has allowed the same. Challenging the same, the present Criminal Revision Petitions have been filed by the defendant No.1.

Learned counsel for the revision petitioner submitted that the trial Court was not correct in allowing the petitions because the burden is on the plaintiffs to file all the relevant documents along with the plaint and cannot be permitted to do so after the evidence of PW1 and DW1 has been recorded. It is submitted that the plaintiffs have sought to mark the documents only on the ground that the defendant has denied the receipt of the payment in his evidence. He placed reliance upon the following judgments in support of his contentions:

(1) Sanagala Srinivasulu Vs. Ponnapoola Seetharamiah 2016 (5) ALD 656;

(2) D.Nagalakshmi Vs. D.Rosamma and Another 2018 (5) ALT 720;

(3) Dr.Rachakonda Srinivas Vs. Md.Hayath Bee 2019 (1) HLT 455;

(4) Nerudu Srinivas Reddy and Another Vs. Neerudu Sunanda @ Sunanda Reddy @ Sripathy Sunanda Reddy 2016 (3) ALD 49.

Learned counsel for the respondents, on the other hand, supported the order of the trial Court and submitted that the plaintiff, in his suit, has referred to all the payments from the bank. It is submitted that only when the defendant denied the said transaction and receipt of the consideration through the relevant cheques, the plaintiff was obtained the relevant documents from the authorities and has filed an application for receiving the said documents and for marking them as exhibits. It is submitted that such an action is permissible under C.P.C. and in support of his contentions, he placed reliance upon the following judgments:

(1) Nimmakayala Subba Reddy and Another Vs. Madisetty Palankaiah and Another 2018 (3) ALD 227;

(2) GPR Housing Private Limited, Hyderabad, rep. by its Managing Director, G.Punna Rao Vs. C.Prithvi Raj Reddy and Others 2015 (1) ALT 330;

(3) Bada Bodaiah Vs. Bada Lingaswamy 2002 LawSuit (AP) 986.

Having regard to the rival contentions and the material on record, this Court finds that the documents which are sought to be received and marked are:

(1) Original Partnership Deed, dated 02.08.2011;

(2) Original Certificate, dated 13.03.1995;

(3) Original Application, dated 26.09.2023;

(4) Postal Receipt, dated 26.09.2023 & Acknowledgement Card.

From the recitals in the affidavit filed along with I.A.No.413 of 2023, it is noticed the plaintiffs have claimed to have made some of the payments to the defendant from the bank account of the partnership firm i.e., M/s.Sircilla Textile Industries Limited and in order to prove that the plaintiffs are the partners of the same, the original partnership deed and original certificate are filed. The original application dated 26.09.2023, postal receipt dated 26.09.2023 and acknowledgement card are all in relation to the request of the plaintiffs to the Manager of the bank i.e., Union Bank of India, to furnish the details of transactions of payments. In the suit, the relevant cheque numbers, dates of payments are also mentioned and therefore, it is not a new plea taken by the plaintiffs at this stage. The transactions are already referred to in the plaint and the documents now sought to be filed are only in support of the said contentions. Therefore, as rightly held by the trial Court, no prejudice will be caused to the defendant in receiving and marking of the said documents subject to their admissibility and relevancy, as the defendant would get an opportunity of cross examination.

The judgments relied upon by the learned counsel for the revision petitioners, are distinguishable on facts.

(i) In the case of Sanagala Srinivasulu (cited supra), this Court was considering the situation where reopening of suit was sought by recalling of witnesses to improve the case at the stage of arguments and hence, it was held that it was not permissible.

(ii) In the case of D.Nagalakshmi (cited supra), it was held that:

Coming to the judgment of the Supreme Court, on which reliance has been placed by the learned counsel for the petitioner, that judgment, itself, has given an indication that in certain cases, it is permissible to recall the witness, invoking Order 18 Rule 17 CPC. Some of the circumstances in which such recall is warranted, are summarised as: 1) Application has to be bona fide; 2) Additional evidence, oral or documentary, should go to assist the Court to clarify the evidence on issues/in rendering justice. Apart from the above, the Court is further required to be satisfied that non-production of a witness earlier was for valid and sufficient reasons, and the Court may exercise its discretion to recall/order fresh evidence.

A careful reading of Order 18, Rule 17 discloses that the provision does not provide for an Application to be made by a party to the proceedings for recalling a witness for re-examination. Recalling of the witness for re-examination or putting certain questions, is for the benefit of the Court to seek clarification. Over a period of time, it appears, the Supreme Court allowed this practice of recalling the witness by way of an Application, even at the instance of a party to the proceedings. However, the fact that a party is allowed to file an Application, by itself, cannot give a right to ignore the procedure laid down under Sections 135 and 137 of the Indian Evidence Act, 1872, which provided the order of examination-in-chief, cross-examination and re-examination and further, the right to lead evidence. In those circumstances, the limited permission granted by the Supreme Court to recall a witness would have to be understood as permissible under Sections 135, 137 and 138 of the 1872 Act. Further, recalling of a witness, on an Application by a party, would cause prejudice to the other, as, it may amount to filling up of lacuna, if any in the evidence of D.W.3.

In fact this decision goes in favour of the defendants i.e., that the Court is required to be satisfied that non-production of witness earlier was for valid and sufficient reasons before the Court exercising its discretion to recall/order fresh evidence.

(iii) In the case of Dr.Rachakonda Srinivas (cited supra), this Court has held that it is mandatory on the part of the plaintiff to file all relevant documents along with plaint by serving copies of documents on the other side and no valid ground was shown by the petitioner for filing the documents subsequently. But, in the case before this Court, the petitioner has shown reasonable grounds for considering the evidence and also recall of witness and therefore, this decision is also not applicable.

(iv) In the case of Nerudu Srinivas Reddy and Another

(cited supra), this Court was considering the re-opening of case after completion of recording of evidence of the suit was at the stage of arguments of the defendants and therefore, it was held that at the belated stage the relief of the nature cannot be granted. However, the case before this Court, the defendant evidence was completed and it was on the basis of defendant evidence that the recall petition has been filed. Therefore, this decision also is not applicable.

In fact, the decisions relied upon by the counsel for the respondents, supports the case of the respondents.

(i) In the case of Nimmakayala Subba Reddy and Another (cited supra), it was held as under:

The Apex Court in Vadiraj Naggappa Vernekar (deceased by LRs.) v. Sharad Chand Prabhakar Gogate, AIR 2009 SC 1604, particularly referring to Para 16, the provision Order XVIII Rule 17 C.P.C. is not meant to fill up the lacunas for the lack of earlier diligence, if any, to invoke to the prejudice of the other party, but for only where the Court after evidence of both sides felt any necessity of pronouncements an effective verdict recall of any witness to put any questions by the Court and not otherwise, is not in dispute, but for to say, as referred in another expression of this Court in Badana Mutyalamma and another v. Palli Appala Raju, 2016 (6) ALD 510 = 2017 (5) ALT 69, by subsequent expression of K.K.Velusamy v. N.Palanisamy, (2011) 11 SCC 275 and Rama Rati v. Mange Ram (D) thr. LRs. and others, 2016 (3) ALD 162 (SC), that as per Order XVIII Rule 17 C.P.C., it is not the right of the party but the power of the Court to sub-serve the ends of justice if at all to invoke irrespective of Court can allow even application moved by the party where it feels to subserve the ends of justice and any recall of any witness is necessary and not otherwise. It is clearly held in the expressions of the apex Court reiterated in B. Mutyalamma's case (supra), that this provision is introduced with the basic purpose postulated to enable the Court to clarify any position or doubt and the Court may either suo motu or on the request of the party, recall any witness at any stage and this can be exercised that any stage of the suit and once Court recalls the witness for purpose of any such clarification or otherwise, the Court may permit the parties to assist the Court by examining the witness for said purpose. However, it is not to fill up the lacunas or gaps, much less to the prejudice of the other side.

(ii) In the case of GPR Housing Private Limited, Hyderabad (cited supra), it was held as under:

Order VII Rule, 14 of the Civil Procedure Code, 1908 enjoins upon the plaintiff to enter all documents, upon which he relies in a list, and produce them in the Court when the plaint, is presented. However, sub-rule (3) thereof vests power in the Court to grant leave to file the documents at a later stage but such power has to be exercised only upon the party satisfying the Court that, for convincing reasons, those documents could not be filed earlier. There can be no hard and fast-rule for the Court to exercise discretion while granting leave under sub-rule (3) of Rule 14. The Courts must always exercise sound discretion while dealing with the applications for leave to file additional material: Mere delay by itself would not constitute the sole ground for rejecting the leave. If the facts and circumstances of the case justify non-filing of the documents at an earlier stage, the Court will not reject the application for leave only on the ground of delay. In the ultimate analysis, the endeavour of the Court must always be to decide the real controversy in issue. If the material sought to be produced has relevance on the issues involved in the suit and helps the Court to determine the issues properly and effectually, the Court must exercise its discretion in favour of allowing such evidence.

(iii) In the case of Bada Bodaiah (cited supra), it was held as under:

A reading of Rule 1 of Order XIlI alone would show that the Court shall receive documents produced on or before the settlement of issues if the copies thereof have been filed along with the plaint or written statement. The Court has no power to receive the documents produced subsequently. Further, Sub-rule (3) of Rule 14 of Order VII empowers the Court to give permission or leave to the plaintiff to produce documents at a subsequent stage of hearing of the suit. Order XIII Rule 1 and Order VII Rule 14 (3) have to be read together harmoniously. Reading together would lead that if the plaintiff applies for permission or leave to produce documents to be received in evidence at the hearing of the suit which documents were not produced on or before settlement of the issues or at the time of production of the plaint, the Court has to exercise sound discretion having regard to the facts and circumstances of each case. Mere non-mention of the documents in the plaint or subsequent incidental or supplemental proceedings in the suit does not in any manner affect the power of the Court to grant leave to produce the documents at the subsequent stage. Non-mentioning of the documents sought to be produced at the subsequent stage is a curable defect. With leave of Court, which is condition precedent under Sub-rule (3) of Rule 4 of Order VII read with Sub-rule (1) of Order 13 to receive the documents, documents can be produced at the time of trial. But Order VII Rule 14(3) being an exception to the rule in Order VII Rule 14(1) as well as Order XII Rule 1(1)(2), the power to grant must be exercised in rare cases and not in a routine manner.

In view of the same, there is no merit in the Civil Revision Petitions, and accordingly, this Civil Revision Petitions are dismissed. There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this Civil Revision Petitions, shall stand closed.