Dismissed

Kannuri Bangarayya at Baburao (Died) and 2 Othrs v. K. Nageswara Rao, E.G.Dist and 4 Othrs

Andhra Pradesh HC18 Dec 2020CRP/1683/2013

Case brief

AI extract

What is this about?

In a civil revision petition concerning a partition suit, the High Court dismissed the plea recalling a witness to mark an unpledged Will. While affirming the lower court's refusal to admit the Will due to lack of pleadings, the Court directed the trial court to substitute certified registration extracts for photocopies already marked.

What did the court decide?

Civil Revision Petition dismissed. Direction given to trial court to substitute registration extracts for photostat copies of Exs.A.1 and A.2.

Kannuri Bangarayya at Baburao (Died) and 2 Othrs Vs K… — Partition | Andhra Pradesh HC (2020)

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HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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CIVIL REVISION PETITION No.1683 of 2013

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ORDER :

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This petition is filed under Article 227 of the Constitution of India assailing the Order dated 15.03.2013 in I.A.No.93/2013 in O.S.No.12/2005 passed by the Senior Civil Judge, Pithapuram, East Godavari District, whereby the application filed under Order 18 Rule 17 of the Civil Procedure Code (for short “CPC”) was dismissed declining to recall P.W.1 for the limited purpose of marking documents filed along with I.A.No.1504/2012.

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It is alleged in the accompanying affidavit that the petitioner himself was examined as P.W.1 in the suit, after filing his chief examination affidavit, he filed I.A.No.1/2012 under Order VII Rule 13 CPC to condone the delay in filing the documents and those documents were received allowing the said interlocutory application. But, the petitioner is to be recalled for the limited purpose of marking those documents filed along with I.A.No.1504/2012 and thereby requested to permit him to examine him on recall for the limited purpose of marking those documents. The respondent did not file any counter. However, the trial Court made an observation clearly that along with I.A.No.1504/2012 four documents were filed. Documents 2 to 4 were also referred in the chief examination affidavit filed under Order 18 Rule 4(2) CPC, but photostat copies were

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already filed and they are marked as Exs.A.2 to A.4. The petitioner obtained certified copies and no need to mark the same as exhibits before the Court. Instead of marking the documents once again it is better to substitute the registration extract in the place of Exs.A.1 and A.2 which are obtained from the Registrar’s office. Therefore, the petitioner is permitted to substitute the registration extracts of Exs.A.1 and A.2 in place of photostat copies which are marked as Exs.A.1 and A.2 and directed the trial Court to substitute those documents as stated supra. The other documents filed along with the application are tax receipts, but the trial Court declined to recall the petitioner (P.W.1) for the purpose of marking the tax receipts as there is no dispute with regard to tax receipts.

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One of the major contentions urged in the petitioner is that the suit was filed for partition and the real dispute is between the 1^st plaintiff and the 1^st defendant, who are the brothers. But, during pendency of the suit, 1^st plaintiff died and his legal heirs came on record as plaintiffs 2 and 3. Consequent upon impleading plaintiffs 2 and 3 consequential amendment was carried out adding Para 6-A and 6-B of the petition. The specific allegation in Para 6-A is as follows:-

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Para VI-A: “During pendency of the suit the 1^st plaintiff died on 13.08.2011 leaving behind him his only sons as his legal heirs. Hence they are added as plaintiffs 2 and 3 in the above suit. The plaintiffs 2 and 3 are in possession of the deceased Kannuri Bangarayya. As such they are

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entitled for the property for which the deceased 1^st plaintiff is entitled.” (amended as per orders in I.A.1237/2011 dt.31.10.2011).

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Similarly, Para 6-B was also added vide Order in I.A.No.1/2012 dated 13.08.2012, but there is absolutely no reference about the Will alleged to have been executed by the deceased 1^st plaintiff in favour of his sons i.e., plaintiffs 2 and 3, the petitioners herein. But, the contention of the learned counsel for the petitioner is that even though no pleading is available on record with regard to execution of the Will by the deceased 1^st plaintiff in favour of the petitioners herein such document can be marked as exhibit since the dispute is between the deceased 1^st plaintiff and the 1^st defendant and no prejudice would be caused to the 1^st defendant, the respondent herein.

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It is an undisputed fact that in the absence of pleading any amount of evidence adduced by the parties cannot be looked into for deciding the real controversy. In the absence of any pleading regarding bequeath of his share by the 1^st plaintiff in favour of the petitioners i.e., plaintiffs 2 and 3, even if such Will is marked, it cannot be looked into for deciding the real controversy between the deceased 1^st plaintiff and the 1^st defendant, who are the brothers. Therefore, prejudice is not relevant factor for marking the documents which is not pleaded in the plaint. The trial Court though dismissed the petition on different grounds, but in the absence of pleadings, I am not able

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to accept the request of recalling petitioner (P.W.1) for limited purpose of marking the Will as there was no pleading with regard to the same. Hence, the Civil Revision Petition is liable to be dismissed.

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In the result, Civil Revision Petition is dismissed affirming the Order dated 15.03.2013 in I.A.No.93/2013 in O.S.No.12/2005 passed by the Senior Civil Judge, Pithapuram, East Godavari District. However, a direction is given to the trial Court to substitute the registration extracts of Exs.A.1 and A.2 in place of Exs.A.1 and A.2, which are photostat copies. There shall be no order as to costs.

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As a sequel, miscellaneous petitions pending, if any, in this petition shall stand closed.

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_________________________________________ JUSTICE M.SATYANARAYANA MURTHY

Date: 18.12.2020

HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

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CIVIL REVISION PETITION No.1683 of 2013

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Date: 18.12.2020

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Kannuri Bangarayya at Baburao (Died) and 2 Othrs v. K. Nageswara Rao, E.G.Dist and 4 Othrs

Case brief

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What did the court decide?

Kannuri Bangarayya at Baburao (Died) and 2 Othrs v. K. Nageswara Rao, E.G.Dist and 4 Othrs

Case brief

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