Dismissed

Intisundaraiah v. Marri Santhi Karuna Kumar

Andhra Pradesh HC17 Dec 2019CRP/2052/2018

Case brief

AI extract

What is this about?

Single judge frame of the MVR, Andhra Pradesh Court disposed of several Civil Revision Petitions challenging an order allowing a respondent to recall witnesses and produce documents to prove financial capacity in an underlying money recovery suit. The court held the lower court acted within its discretion under Section 151 CPC.

What did the court decide?

All Civil Revision Petitions dismissed; impugned order confirming the trial court's decision stands upheld; suit to be disposed within three months.

Intisundaraiah Vs Marri Santhi… — Contract and Commercial Disputes | Andhra Pradesh HC (2019)

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MVR,J CRP Nos.2142,2213,2052 and 2146 of 2018

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HON’BLE SRI JUSTICE M.VENKATA RAMANA

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CIVIL REVISION PETITION Nos.2142, 2213,2052 and 2146 of 2018

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COMMON ORDER:

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These Civil Revision Petitions are preferred against the common order of the Court of learned XI-Additional District Judge, Krishna District, at Gudivada, dated 06.02.2018 in I.A.Nos.1966 of 2016, 1472 of 2017, 22 of 2017 and 1967 of 2016 respectively. These petitions were filed in the trial Court by the petitioner, to reopen evidence on his behalf, to recall him for further evidence, to receive documents and to permit him to file an Additional Affidavit, in lieu of examination-in-chief.

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The respondent laid the suit for recovery of Rs.32,96,000/- on the foot of a promissory note for Rs.30,00,000/- alleged to have had been executed on 04.01.2002, by the respondent, agreeing to repay the same with interest at 24% p.a., on demand. The petitioner, as the defendant, resisted the claim of the respondent, raising several grounds including want of financial capacity of the respondent to lend such amount. He also alleged that, taking advantage of the blank promissory notes and cheques alleged to have had been issued by the respondent to the father of the respondent, the said promissory note was brought out.

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The trial is in progress in the suit, where, on behalf of the respondent, two witnesses have been examined including himself. Whereas, on behalf of the petitioner, D.W.1 to D.W.5 have been examined including the respondent.

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When the suit was posted for further evidence on behalf of the petitioner, the respondent filed all the petitions referred above.

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The ground set out by the respondent in the petitions is that, in order to prove his capacity to lend the amount to the petitioner under the suit promissory note, he intends to rely on certain documents, which are filed

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MVR,J CRP Nos.2141, 2213, 2052 and 2146 of 2018

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along with I.A.No.22 of 2017 and therefore for such purpose, he required to be recalled. These documents are material, according to the respondent to prove his claim. He also stated that he had sold away a house at Vijayawada for considerable amount, that his father retired from railways as A1-special driver, who received retiral benefits and that his wife being a Government Doctor, he has financial capacity to lend such amount.

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The petitioner resisted these petitions, principally, on the ground that the proposed documents were available with the respondent by the date of filing the suit, regarding which, he has not set up any pleading. He also objected on the ground that financial strength of his father or his wife, cannot be a reason to prove his financial capacity and that the documents sought to be produced are no way connected to the matters in issue, in the suit. He further contended that only to procrastinate the matter, obstructing the disposal of the suit, these petitions are filed.

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Considering the material available on record and the contentions of the parties, learned trial judge allowed all the petitions by the impugned common order subject to payment of costs.

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Sri Y. Ramatirtha, learned counsel for the petitioner, and Sri Mehar Kumar, learned counsel for respondent, submitted their arguments, supporting the respective stands of the parties.

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Now, the point for determination is-“Whether the respondent be given an opportunity to adduce evidence in support of his claim in order to rebut the defence of the petitioner, permitting him to produce certain documents?

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POINT :-

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The suit is part heard, by the date of filing the petitions, in the trial Court. Evidence on behalf of the petitioner was continuing.

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MVR,J CRP Nos.2141, 2213, 2052 and 2146 of 2018

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In order to strengthen his contentions, the respondent intends to produce certain documents not only to prove his financial strength, but also the financial accommodation he can have, either from the retiral benefits of his father or income of his wife as a Government doctor. It is an effort, according to him, to meet the defence of the petitioner, who questioned his financial capacity to lend Rs.30,00,000/-, under the suit promissory note.

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The documents sought to be produced by him are enlisted in I.A.No.22 of 2017, being his Savings Bank passbook account in SBI, Vijayawada, sale deed under which he sold the house at vijayawada to Smt. Doddi Kamala Devi and Savings bank Passbook of his father Sri Windsor Paul.

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These documents were available, undisputedly, with the petitioner by the date of filing the suit. But, failure to produce them along with the plaint cannot be a reason for the petitioner to rely on. The reason is that by the date of the institution of the suit, it cannot be construed that the respondent would have known or expected the nature of defence the petitioner would offer to his claim. It is a matter of evidence, which the respondent proposes to adduce in the suit, for the above purpose.

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Pleadings, as is well known, cannot refer to instances of evidence and it is fundamental. In such event, permitting the respondent to adduce such evidence, on the ground set up by the petitioner, cannot be found fault with. The petitioner will have an opportunity to cross-examine not only the respondent but also any other witness the respondent may propose to examine, at the trial, in due course. It cannot be stated that there has been inordinate delay in filing these petitions in the trial Court, considering the stage at which the suit now stands.

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Neither it can be stated delayed production of the documents would cause any prejudice or affect the defence of the petitioner, in the process, in the suit. For the purpose of producing such documents, upon condoning delay

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MVR,J CRP Nos.2141, 2213, 2052 and 2146 of 2018

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in filing them, as well as to let in evidence, it is necessary that evidence on behalf of the respondent should be reopened. Filing an additional affidavit in lieu of examination-in-chief by the respondent, in this respect, is necessary.

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Learned trial Judge has taken into consideration all the required parameters in this context and allowed the petitions. Reliance is placed by the petitioner in Polyflor Limited v. Sh A.N.Gownka and others , Mohan Raj v. Karam Chand and others (AIR 2003 Raj.-1) and M/s. Bagai Constructions Thr. Its Proprietor M/s. Lalith Bagai v. M/s. Gupta Building Material Store¹ , as well as Order-XVIII, Rule-17 itself in the process of assigning reasons when the petitions were chosen to be allowed.

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In Bagai Constructions case referred supra , in para-10, their Lordships of Hon’ble Supreme Court considered K.K. Velusamy v. N. Palanisamy (2011) 11 SCC 275 , and Vadiraj Naggappa Vernekar (2009) 4 SCC 410 with reference to making use of Section 151 CPC and observed

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“10. In Velusamy (supra) even after considering the principles laid down in Vadiraj Naggappa Vernekar (supra) and taking note of Section 151 Code of Civil Procedure, this Court concluded that in the interests of justice and to prevent abuse of the process of the Court, the trial Court is free to consider whether it was necessary to reopen the evidence and if so, in what manner and to what extent. Further, it is observed that the evidence should be permitted in exercise of its power under Section 151 of the Code. The following principles laid down in that case are relevant:

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“19. We may add a word of caution. The power Under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs.”

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AIR 2013 SC 1849

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MVR,J CRP Nos.2141, 2213, 2052 and 2146 of 2018

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A word of caution is also added in this ruling in para-19, which for the benefit is referred to hereunder.

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“When the interest of justice warrant and when attempt of the respondent at the trial is only to rebut defence set up by the petitioner, exercise of discretion by the learned trial Judge by allowing the petitions of the respondent has to be held, proper.”

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The observations of the Hon’ble Supreme Court do support the inference so drawn by the learned trial Judge.

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Thus, finding that there is no illegality or irregularity nor perversity in ordering the petitions of the respondent by the impugned common order, it has to be held that these Civil Revision Petitions need to be dismissed, rejecting the contentions of the petitioner.

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In the result, all the Civil Revision Petitions are dismissed and the common order, dated 06.02.2018, of the Court of learned XI-Additional District Judge, Krishna District, at Gudivada in I.A.No.1966/2016, I.A.No.1472 of 2017, I.A.No.22 of 2017 and I.A.No.1967 of 2016 in O.S.No.53 of 2012, stands confirmed. The trial Court shall make effort to dispose of the suit within three months, subject to co-operation of the parties. No costs.

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As sequel, pending miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.

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_______________________ JUSTICE M.VENKATA RAMANA

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Dt: 17.12.2019. RRR

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MVR,J CRP Nos.2141, 2213, 2052 and 2146 of 2018

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HON’BLE SRI JUSTICE M.VENKATA RAMANA

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