Koppana Ramesh vs Koppana China Padmaraju & Ors.

These Civil Revision Petitions are directed against the orders dated 27.02.2017 in I.A.Nos.128 and 127 of 2017 in O.S.No.107 of 2006 on the file of the learned Civil Judge (Senior Division), Peddapuram, dismissing the said applications.

I.A.No.128 of 2017 is filed to reopen the plaintiffs’ evidence, and I.A.No.127 of 2017 is filed to summon the thumb impression registers for expert opinion.

The revision petitioner is the first plaintiff, respondent Nos.1 to 6 are defendants, and respondent No.7 is the second plaintiff before the trial Court. The parties are hereinafter referred to as plaintiff and defendants.

The plaintiffs filed O.S.No.107 of 2006 seeking the relief of partition and separate possession of their legitimate share in the suit schedule properties. The plaintiffs examined the first plaintiff as P.W.1 and his mother as P.W.2. Thereafter, the matter was posted for further evidence. As the plaintiffs did not lead further evidence, the trial Court imposed costs on them. Instead of paying the costs, the plaintiffs filed a memo bearing S.R.No.2675 of 2016, stating that they had been declared indigent persons and were unable to pay the costs. They also filed another memo bearing S.R.No.2676 of 2016, stating that they reserved their right to adduce rebuttal evidence on Issue No.1.

Thereafter, the defendants adduced their evidence. After the defendants completed their evidence, the plaintiffs sought permission to adduce rebuttal evidence. The trial Court did not grant permission to adduce rebuttal evidence and posted the matter for arguments, and consequently closed the plaintiffs’ further evidence.

During the defendants’ evidence, copies of the registered Wills were confronted to D.W.4 during cross-examination and marked as Exs.A4 and A5, subject to objections. The defendants relied on an unregistered Will dated 26.12.2003, marked as Ex.B5.

The plaintiffs disputed the unregistered Will marked as Ex.B5. In support of their case concerning the registered Wills marked as Exs.A4 and A5, they sought an expert opinion on the signatures and thumb impressions. For examination of the thumb impressions, they intended to summon the Thumb Impression Registers from the Sub-Registrar’s Office, Peddapuram, relating to the registration of Exs.A4 and A5, and send the Wills along with the registers for comparison by an expert. For this purpose, the plaintiffs filed two applications I.A.Nos.127 and 128 of 2017, seeking to reopen their evidence and summon the Thumb Impression Registers from the Sub-Registrar, Peddapuram.

Defendant Nos.3, 5 and 6 filed counters denying the allegations and opposing the applications. They contended that the plaintiffs’ evidence had been closed because they failed to pay the costs imposed by the Court, and that their status as indigent persons did not exempt them from paying costs. At most, they could be exempted from paying court fees, but not costs. They further contended that, as the evidence of both sides had been completed, the plaintiffs cannot reopen their evidence at that stage. They also objected to summoning the public documents, contending that compelling their production would affect the functioning of the Sub-Registrar’s Office. On these grounds, they sought dismissal of the applications.

Upon hearing both sides, the learned Judge dismissed the two applications. In I.A.No.128 of 2017, the learned Judge observed that, despite being given ample opportunities, the plaintiffs had not led further evidence and had failed to deposit the costs imposed by the Court. In I.A.No.127 of 2017, the learned Judge observed that the Court had closed the plaintiffs’ evidence for non-payment of costs and that they could not, therefore, be permitted to reopen it.

The plaintiff, being dissatisfied with the dismissal of the applications, filed the present Civil Revision Petitions. This Court granted a stay in C.R.P.No.2052 of 2017.

Sri T.V. Jaggi Reddy, learned counsel for the plaintiff submitted that the trial Court failed to appreciate the plaintiffs’ right to rebut the evidence adduced by the defendants. The dispute is registered and unregistered Wills, and the plaintiffs contend that the relevant documents must be summoned and sent for expert opinion to examine the signatures and thumb impressions. He submitted that the expert opinion was necessary to establish the plaintiffs’ case and that the applications ought to have been allowed.

Sri T.V.S. Prabhakara Rao, learned counsel for defendant Nos.3, 5 and 6 submitted that the plaintiffs must deposit the costs before seeking any order on their applications. He argued that payment of costs was a prerequisite and that the plaintiffs had been declared indigent persons only for the purpose of instituting the suit; that declaration did not exempt them from costs imposed by the Court.

Learned counsel relied on the decision in Lakshmi and another v. Chinnammal @ Rayyammal and others^{11.(2009) 13 SCC 25}, particularly paragraph 12, and submitted that, for a just decision, Courts should encourage the production of relevant documents. The relevant portion of paragraph 12 reads as follows:

Learned counsel further relied on Manohar Singh v. D.S. Sharma and another^{22.(2010) 1 SCC 53.}, arising out of Civil Appeal Nos.7554 and 7555 of 2009, particularly paragraph 9. He submitted that where costs imposed during the examination of witnesses were not paid, the Court ought to have closed the evidence of the witness, permitted the parties to lead any further evidence, and then disposed of the suit on merits. As the plaintiffs had not paid the costs in the present case, he argued that the trial Court rightly dismissed the applications. The relevant portion of paragraph 9 reads as follows:

Learned counsel also relied on Kailash v. Nanhku and others^{33.(2005) 4 SCC 480}, arising out of Civil Appeal No.7000 of 2004, particularly paragraph 27. He contended that procedural laws provide a framework to advance justice and that no party should ordinarily be denied an opportunity to participate in the process of justice. The relevant portion of paragraph 27 reads as follows:

Learned counsel further submitted that, as the plaintiffs had failed to comply with the Court’s direction to pay costs, the trial Court rightly dismissed the applications. He therefore submitted that no interference with the impugned orders was warranted and sought dismissal of the revision petitions.

In response, learned counsel for the plaintiff sought to have the revision petitions allowed, the impugned orders set aside, and an opportunity granted to the plaintiffs to lead evidence.

Heard learned counsels for the plaintiff and learned counsel for defendant Nos.3, 5 and 6, and perused the material on record. The facts shown after the evidence of both sides had been closed, the plaintiffs filed I.A.No.128 of 2017 seeking to reopen their evidence. The prayer in the application reads as follows:

The connected prayer in I.A.No.127 of 2017 reads as follows:

In paragraph 5 of the supporting affidavit, the first plaintiff stated the reasons for seeking to reopen the plaintiffs’ evidence and to obtain the relevant documents for expert opinion.

The Court has to consider the relief sought in the prayer portion, rather than the averments in the affidavit. In the prayer, the plaintiffs sought to reopen their evidence to adduce rebuttal evidence. The learned Judge dismissed the application, observing that the plaintiffs had been given ample opportunities to lead further evidence on payment of costs but had failed to deposit the costs. The argument are the plaintiffs’ exemption as indigent persons extends to court fees and process fees; it does not, by itself, exempt them from payment of costs.

On perusal of the impugned order, there is no specific reference of the plaintiffs’ assertion, that they had filed Memo S.R.No.2675 of 2016, stating that they had been declared indigent persons and were unable to pay the costs and Memo S.R.No.2676 of 2016, stating that they had reserved their right to adduce rebuttal evidence. The defendants admitted that the plaintiffs had instituted the suit as indigent persons. However, the impugned order does not disclose that the Court considered these memos or determined their effect before dismissing the application for reopening the evidence.

There is no reference that, the Court had considered the memo and granted the plaintiffs liberty to adduce rebuttal evidence. The order has not placed the legal position on the plaintiffs’ right to adduce rebuttal evidence after closure of their evidence and rebuttal right.

The record before this Court does not disclose whether the memos bearing S.R.Nos.2675 and 2676 of 2016 are pending or any consideration is given. In these circumstances, this Court does not consider it appropriate to examine the legality of the impugned orders at this stage, in the absence of findings by the trial Court on the plaintiffs’ assertions that their indigent status excused them from paying costs and that they had reserved their right to adduce rebuttal evidence.

The absence of findings on these factual aspects prevents this Court from arriving at a conclusive view. Unless the trial Court considers the said memos and records its findings, this Court cannot properly examine the rejection of the plaintiffs’ plea concerning non-payment of costs in view of their declaration as indigent persons. The impugned orders contain no specific findings on these material aspects. The reasons assigned by the learned Judge therefore require reconsideration.

In these circumstances, without expressing any opinion on the merits of the case, this Court considers it appropriate to set aside the impugned orders and remand the applications to the trial Court to consider the pleas of both parties and the relevant factual aspects, and to decide the applications afresh.

In the result, both the Civil Revision Petitions are allowed. The orders dated 27.02.2017 in I.A.Nos.127 and 128 of 2017 in O.S.No.107 of 2006 on the file of the learned Senior Civil Judge, Peddapuram, are set aside, and the applications are remanded to the trial Court for fresh consideration. The trial Court shall pass appropriate orders afresh after giving both parties an opportunity of being heard and in accordance with law, within a reasonable time.

No order as to costs.

Pending applications, if any, shall stand closed. The interim order granted earlier is hereby vacated.