Allowed

M Devrajulu, Tpt., Chittoor Dist v. S. Peddulu, Tpt., Chittoor Dist

Andhra Pradesh HC13 Dec 2019CRP/3821/2016

Case brief

AI extract

What is this about?

The High Court allowed the civil revision petitions, setting aside the trial court's order rejecting the petitioner's application to reopen evidence. The appellant was permitted to summon a proposed witness to examine the promissory note despite the closure of his evidence, directing the trial court to issue the summons.

What did the court decide?

Revision petitions allowed; impugned orders in I.A. Nos. 454 & 455 set aside; trial court directed to summon the proposed witness and reopen evidence.

M Devrajulu, Tpt., Chittoor Dist Vs S… — Civil Procedure and Limitation | Andhra Pradesh HC (2019)

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HON’BLE SRI JUSTICE M.VENKATA RAMANA

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CIVIL REVISION PETITION Nos.3819 & 3821 of 2016

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COMMON ORDER:

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Civil Revision Petition No.3819 of 2016 is directed against the order in I.A.No.454 of 2016 in O.S.No.566 of 2012, dated 18.07.2016, on the file of the Court of learned Additional Senior Civil Judge, Tirupathi, under Article 227 of the Constitution of India.

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Civil Revision Petition No.3821 of 2016 is directed against the order in I.A.No.455 of 2016 in the same suit of the same court of the same date, under Article 227 of the Constitution of India.

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In both the civil revision petitions, the plaintiff is the petitioner. He laid the suit against the respondent on the foot of a promissory note dated 15.07.2010 alleged to have had been executed by the respondent upon borrowing Rs.6,00,000/- from him agreeing to repay the same with interest at 24% p.a. on demand and for recovery of Rs.9,30,000/- in all with costs and with future interest.

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The suit is part heard in the trial court.

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The petitioner filed I.A.No.454 of 2016 under Section 151 CPC to reopen the evidence on his behalf for adducing further evidence, to enable him to examine one of the attestors of the suit promissory note by name Sri A. Anand. For such purpose, he filed, I.A.No.455 of 2016, under Order-16, Rule 1(2) and Section 151 CPC.

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The contention of the petitioner is that, on 08.06.2016, the trial Court recorded evidence on his behalf as closed and when the suit was posted to 15.06.2016, he filed I.A.No.455 of 2016 to summon the proposed witness, which was returned pointing out that the

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MVR,J CRP.Nos.3819,3821 of 2016

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evidence on his behalf was already closed on 08.06.2016. Stating that he came to know about this fact of closing evidence on his behalf on 15.06.2016, if evidence on his behalf is not reopened for the purpose of examining the above witness, he would suffer irreparable loss and injury and that there was no wanton delay or negligence on his part, request is made to reopen evidence on his behalf and also to issue summons to the proposed witness to examine on his behalf.

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Both these petitions were opposed on behalf of the respondent denying the reasons assigned by the petitioner in the counter filed in the trial Court. A reference was made as to suit proceedings, where the petitioner was cross-examined as P.W.1 on 18.04.2016, thereafter he availed time upto 08.06.2016 for leading further evidence and that on that day viz., 08.06.2016 finding that there was no representation for the petitioner, his evidence was closed. Thus, it was stated in the counter that the suit was posted for his evidence to 15.06.2016. While referring to outcome of cross-examination of P.W.1, where the petitioner stated that he did not know the particulars of the proposed witness Sri A. Anand, it was further questioned by the respondent as to nature of this attempt by the petitioner, while adverting to the nature of defence he had set up in his written statement, that the suit promissory note was never executed by him and that the petitioner being a stranger to him.

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Considering the rival contentions and the material on record, learned trial Judge, by the order impugned in CRP.No.3819 of 2016 observed that the petitioner did not avail opportunity though sufficient time was given and that the petitioner is not diligent in

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MVR,J CRP.Nos.3819,3821 of 2016

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prosecuting the case, who is trying to procrastinate the matter. Thus, observing, learned trial Judge, rejected his request for reopening evidence on his behalf and consequently in I.A.No.455 of 2016, request of the petitioner to issue summons to the proposed witness was also rejected.

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Both these orders are now under challenge in these civil revision petitions.

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Sri Suresh Kumar Reddy Kalava, learned counsel for petitioner in both the civil Revision Petitions, referring to the nature of the suit claim as well as circumstances under which the petitions were filed, pointed out that the trial is making progress and the matter is not reserved for judgment. Having regard to the circumstances, the learned counsel for the petitioner contended that an opportunity be given to the petitioner to enable him to cross-examine the proposed witness, particularly, having regard to the nature of defence set up by the respondent.

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In spite of service of notice, none appeared for the respondent in both these revision petitions. After listing this matter for more than once for orders, they are now being disposed of by this common order.

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Now, the point for determination is-“Whether the petitioner be given an opportunity to adduce evidence further?

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POINT :

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As rightly pointed out for the petitioner, the trial in the suit has not come to an end. The reason assigned by the petitioner for

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MVR,J CRP.Nos.3819,3821 of 2016

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presenting these two petitions, on 15.06.2016 is, apparently, on account of his impression, which, in fact, then was not correct, to the effect that evidence on his behalf was not closed and was to be adduced further. When the petitioner has so clearly stated in his affidavit of such fact, and possibly on the very next day of adjournment from 08.06.2016 viz., 15.06.2016, when he presented both these petitions, it cannot be stated as such that the reason so assigned by him lacks bona fides.

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It is further to be noted that the proposed witness, Sri A. Anand, is a relation of the respondent, and other witnesses to Ex.A1 transaction are none other than the son and daughter-in-law of the respondent. Even in those circumstances, probably, to meet the requirement of law to examine one of the attestors to the suit promissory note, the petitioner has requested the trial Court to summon him as a witness on his behalf. Such effort was made in order to prove the suit promissory note-Ex.A1, having regard to nature of defence set up by the respondent denying its execution and the transaction thereunder.

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In these circumstances, learned trial Judge, should have given an opportunity to the petitioner, to let in such evidence. By giving such an opportunity, the respondent would not stand to surprise or prejudice. Upon examination of the proposed witness, the respondent may also stand to gain, since the proposed witness would be crossexamined, if necessary, on behalf of the respondent, for his benefit, eliciting certain statements, in support of his defence.

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MVR,J CRP.Nos.3819,3821 of 2016

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Viewed from such perspective, in the circumstances of the case, finding no justification, to reject the request of the petitioner, these revision petitions, have to be ordered.

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In the result, both the civil revision petitions are allowed setting aside the orders of the learned Additional Senior Civil Judge, Tirupathi in I.A.Nos.454 & 455 of 2016 in O.S.No.566 of 2012, dated 18.07.2016. Consequently, the trial Court is directed to summon the proposed witness, since I.A.No.455 of 2016 stands allowed, upon depositing process fee and, consequently, allowing I.A.No. 454 of 2016 upon reopening the evidence of the petitioner (plaintiff). The trial Court is directed to fix a specific date, direct service of summons on the proposed witness, handing over to the petitioner himself for service and also through Court.

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As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Order granted earlier, shall stand vacated.

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_______________________ JUSTICE M.VENKATA RAMANA

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Dt: 30.12.2019.

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RRR

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MVR,J CRP.Nos.3819,3821 of 2016

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HON’BLE SRI JUSTICE M.VENKATA RAMANA

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CIVIL REVISION PETITION No. 3819, 3821 of 2016

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DATE: 30-12-2019

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RRR

M Devrajulu, Tpt., Chittoor Dist v. S. Peddulu, Tpt., Chittoor Dist

Case brief

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M Devrajulu, Tpt., Chittoor Dist v. S. Peddulu, Tpt., Chittoor Dist

Case brief

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