Dismissed

Alapati Srinivasa Kumar, Hyd v. Smt. Alapati Prameela Devi, Visakhapatnam Dist and Two Others

Andhra Pradesh HC15 Nov 2022CRP/6329/2017

Case brief

AI extract

What is this about?

Single judge dismissed civil revision petition challenging trial Court order refusing to eschew deceased witness evidence. Court held that partial evidence remains relevant under Section 33 Evidence Act. Trial Court correctly refused to pass order on memo. Suit remanded for expedition.

What did the court decide?

Civil revision petition dismissed. Trial Court directed to dispose of suit within six months.

Alapati Srinivasa Kumar, Hyd Vs Smt. Alapati… — Property and Title | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

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CIVIL REVISION PETITION No.6329 of 2017

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O R D E R:

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This Civil Revision Petition is filed by the petitioners/defendants under Article 227 of the Constitution of India against the Orders passed by learned II Additional District and Sessions Judge, Guntur, on a memo filed by the petitioner herein to eschew the evidence of PW.1, dated 30.09.2017 in O.S.No.285 of 2011 wherein and whereby learned

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trial Judge passed orders, which reads as under:-

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“Cancellation of sale deed- Defendant filed memo to eschew the evidence of PW1 and objections are filed by the plaintiff Nos. 2 and 3. On perusal of evidence of PW1 it shows that her examination in chief affidavit was received as chief examination of PW1 on 27-2-2013 and she was cross examined by defendant on 1-4-2013 and again on 8-6-2015 and her cross was deferred at request. Subsequently while the CRP No.1663/16 was pending before the Honourable High Court, Hyderabad PW1 died. Hence in these circumstances no opinion or order can be pass on the memo filed by defendants and it can be take note at the time of appreciation of evidence at the time of judgment. Hence I am of the considering opinion that suit shall be continued. Call on 15-9-2017 for PW2 cross. Memo in OS 285/11 - Memo filed by defendants that no stay is pending before Honourable High court, Hyderabad and CRP 1663/2016 was dismissed. Memo recorded. Call with main suit.”

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It is the contention of the revision petitioner/defendant that the

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view taken by trial Court postponing of passing of orders in his request to eschew the evidence of PW.1 is contrary to facts and law. He submit that learned trial Judge ought to have allowed memo filed by him on 01.12.2016 and ought to have eschewed the evidence of PW.1, who was not produced for cross examination. He prays to allow the revision petition and eschew the evidence of PW.1.

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I have heard both sides.

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Learned counsel Ms.P.Priyanvita, representing on behalf of Mr.V.Srinivas, learned senior counsel for the revision petitioner would submit that it is clearly mentioned in the memo filed by the petitioner before trial Court that PW.1 was partly cross examined and thereafter she was not produced for further cross examination and then the respondents came up with a petition to appoint an Advocate/Commissioner, which was allowed by the trial Court against which they preferred C.R.P.No.1663 of 2016 wherein this Court granted interim stay and thereafter PW.1 died at Chennai in suspicious circumstances for which FIR also lodged. She would further submit that PW.1 went to Chennai, which is contra to her pleading about inability to move from the bed on which the respondents moved an application for appointment of an Advocate/Commissioner. It is the contention of

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learned counsel for the revision petitioner that the respondents have intentionally not produced PW.1 for further cross examination to suppress the truth to avoid giving favourable answers to the case of the petitioner herein. She prays to eschew the evidence of PW.1.

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Learned counsel Mr.Akhil Krishnan, representing on behalf of Mr.K.Nithin Krishna, learned counsel for the respondents would submit that PW.1 though died before completion of her examination her evidence cannot be eschewed and portion of evidence can be looked into which depends upon the facts and circumstances of the case. He relied on decision in Kurshid Begum and Others Vs. Amni Jan and

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Others in Civil Revision Petition order dated 26.07.2005 of Madras

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High Court.

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He prays to dismiss the revision petition.

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Now the issue that emerges for consideration of this Court is:-

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“Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Section 227 of Constitution of India?”

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POINT:-

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Before going to the merits of the case, it would be beneficial to

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quote under Section 33 of Indian Evidence Act, which reads as under:-

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Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.—Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided— that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to crossexamine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

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The petitioner herein instead of filing petition for seeking relief which he claimed chosen to file memo. Filing any memo before the Courts is only for the purpose of furnishing information to the Court with regard to any aspect pertaining to that particular case and no order can be passed on a memo. When the petitioner intended to

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seek any relief, it must be by way of petition supported by affidavit putting forth his case. In similar circumstances, this Court in

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Mahalingappa & Ors. Vs. Kariyanna C.R.P.No.2529 of 2008 order dated 18.04.2009 held that para Nos.9 and 10, which reads as under:-

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“9. The law is well-settled that Section 151 of C.P.C. saves the inherent powers of the Court to pass such orders as may be necessary to meet the ends of justice so long as such order is not contrary to the express provisions of any statute. It is also a well settled principle that the exercise of the inherent power under Section 151 of C.P.C. cannot be held to be bad merely on the ground that there is no express provision under any statute dealing with the matter.

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The order dated 17-08-2007 passed by the Court below in eschewing the whole evidence of D.W.1 is only a procedural error and such error which vitiated the entire proceedings in the suit resulting in miscarriage of justice can always be corrected by the Court in exercise of its inherent powers under Section 151 of C.P.C.”

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In the above referred decision, this Court considered scope of

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Section 138 of Evidence Act as well as Section 151 C.P.C inherent powers of the Court to set aside eschewed order passed. In the said case party who examined the witness wanted to eschew the evidence

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of their witness, which opposed by the plaintiff and then Order of eschewing evidence set aside, which was challenged by way of filing revision petition, which dismissed by this Court.

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In Nalam Satya Prasada Rao and Ors. Vs.Vinipamula Lakshmi Narasimha 1991 70 ComCas 303 A.P., this Court in similar circumstances also held that eschewing entire evidence is depending upon the facts and circumstances of this case wherein it is also discussed ratio laid down by Division Bench of Madras High Court in Mahalingappa & Ors. Vs. Kariyanna AIR 1925 Madras 497 at 537.

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In the present case, suit is filed by the respondents along with PW.1 for cancellation of registered gift deed dated 17.08.2009 said to be executed by PW.1 in favour of petitioner herein and consequential relief of permanent injunction. The petitioner herein is no other than son of PW.1 and brother of R.2, R.3. Before trial Court, the 1^st plaintiff/mother was examined as PW.1 and she was also cross examined in part and thereafter she was not produced for further cross examination and then the respondents/plaintiffs came up with a petition to appoint an Advocate/Commissioner to record further cross examination of PW.1 at Visakhapatnam on the ground that she was not in a position to move due to her ill-health, it was allowed by the trial Court and Advocate/Commissioner was appointed. The said orders challenged by the petitioner by filing C.R.P.No.1663 of 2016 before this Court wherein this Court passed interim orders and thereafter dismissed C.R.P.No.1663 of 2016 as became infractuous

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due to the death of PW.1. Now the contention of revision petitioner is that PW.1 said to be not in a position to move went to Chennai where she died in suspicious circumstances for which FIR also lodged and she was not intentionally produced before the Court by R.2, R.3 to suppress the truth due to that reason the petitioner seeking to eschew the entire evidence of PW.1. The fact remains is that PW.1 chief examination affidavit already filed before trial Court, who also affirmed her chief examination and thereafter she was cross examined in part. Learned trial Judge passed orders on a memo filed by the revision petitioner that no opinion or order can be passed on a memo filed by the petitioner and it can be taken note at the time of appreciation of evidence at the time of Judgment. As per ratio laid down by this Court

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in Mahalingappa & Ors Vs.Kariyanna case referred supra and also in view of ratio laid down by this Court in Nalam Satya Prasada Rao and Others case referred supra and ration laid down in Madras High Court in Kurshid Begum and Others case referred supra, the entire evidenced of PW.1 cannot be eschewed in view of specific provision of Section 33 of Indian Evidence Act when admittedly PW.1 is died and there is no possibility of producing her for further cross examination. However, the evidenciary value of PW.1 can only be decided at the time of final disposal of the case as observed by this Court in Nalam Satya Prasada Rao and others case referred

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supra, which rightly held by learned trial Judge. This Court did not find any illegality or irregularity in the orders passed by learned trial Judge warrants interference of this Court under Article 227 of Constitution of

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India.

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In the result, the Civil Revision Petition is dismissed. No order as to costs.

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As the suit is pertaining to the year 2011 and dispute is between family members. Learned trial Judge is directed to dispose of the Original Suit as expeditiously as possible within six months from the date of receipt of Orders by this Court in the present Civil Revision Petition.

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Consequently, miscellaneous petitions, if any, pending shall stand closed.

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The interim stay if any granted is stand closed.

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____________________________ JUSTICE BANDARU SYAMSUNDER

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Date :15.11.2022 chb

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THE HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

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