Dismissed

M/S.Ushodaya Enterprises Private Limited v. Musunuru Apparao

Andhra Pradesh HC1 Apr 2024CRP/3112/2023

Case brief

AI extract

What is this about?

Defendant sought summons to the Urban Land Ceiling Authority for original records in an eviction suit without applying for certified copies. The High Court held Rule 129 requirements were unmet and dismissed the revision, permitting certified copies to be filed given plaintiff's consent.

What did the court decide?

Revision dismissed; petitioner permitted to obtain and file certified copies of the documents, plaintiff having no objection.

M/S.Ushodaya Enterprises Private Limited Vs… — Property and Title | Andhra Pradesh HC (2024)

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APHC010606572023

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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(Special Original Jurisdiction)

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[3311]

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TUESD A Y, THE SECOND DAY OF APRIL TWO T HOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE MS JUSTICE B S BHANUMATHI

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CIVIL REVISION PETITION NO: 3112/2023

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Between:

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M/s.ushodaya Enterprises P rivate Limited

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...PETITIONER

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AND

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Musunuru Apparao and Ot h ers ...RESPONDENTS

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Counsel for the Petitioner:

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Sri M R K CHAKRAVARTHY

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Counsel for the Respondent(S):

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Sri V V R AVI PRASAD

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The Court made the following:

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BSB, J C.R.P.No.3112 of 2023

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ORDER :

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This revision, under Article 227 of the Constitution of India, is filed by the petitioner/1^st defendant in O.S.No.409 of 2015 on the file of the Court of VII Additional District Judge, Vijayawada, against the order, dated 03.11.2023, dismissing the petition in I.A.No.1053 of 2023 in the said suit.

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Heard Sri M. R. K. Chakravarthy , learned counsel for the petitioner/1^st defendant and Sri V.V.Ravi Prasad , learned counsel for the 1^st respondent/ plaintiff. The 2^nd respondent/2^nd defendant is shown to be not necessary party to this revision.

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The case of the petitioner, in brief, is as follows:

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(a) The Special Officer and Competent Authority, Urban Land Ceiling, Vijayawada, advised the 1^st respondent/plaintiff through his letter bearing No.CC/B3/1405/76, dated 16.10.2008, to apply for regularization of surplus land in terms of G.O.Ms.No.747, dated 18.06.2008, on the ground that the suit property is vested in the Government under Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976 (“the Act”, for short). The petitioner filed W.P.No.23838 of 2008 challenging the said proceedings and this Court directed to maintain status quo , vide order, dated 18.11.2008, W.P.M.P.No.310875 of 2008 in W.P.No.23838 of 2008 and in view of the pendency of the writ petition, the present suit is not maintainable and is liable to be dismissed. The 1^st respondent filed declaration under the Act

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BSB, J C.R.P.No.3112 of 2023

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stating that he has leased out the land to the petitioner for running a newspaper and is seeking exemption under Section 20 of the Act. By order, dated 11.11.1981, the plaintiff was declared as surplus holder to an extent of 2,220 square meters under Section 8(4) of the Act and the said order was confirmed in Appeal No.AUC/3126/1982, dated 27.11.1984. The Government, in its counter, in W.P.No.23838 of 2008, alleged that the possession of the surplus land was taken over on 28.02.2006. the letter, dated 16.10.2008, of the Special Officer and Competent Authority, was questioned on several grounds in the writ petition. The 1^st respondent is a party to the said proceedings and suppressed certain facts which have a direct bearing on the issues to be decided in the present suit.

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(b) In the aforesaid circumstances, the petitioner/1^st defendant filed I.A.No.1053 of 2023 seeking a direction to the Special Officer and Competent Authority, Urban Land Ceiling, Vijayawada, to produce the entire original record pertaining to the suit property including the declaration filed by the plaintiff and applications for exemption filed by the plaintiff and all orders including those under Sections 8(4), 9, proceedings under 10(1), 10(3), 10(5) & 10(6) of the Act including the letter bearing No.CC/B3/1405/76, dated 16.10.2008, and order, dated 27.11.1984, in Appeal No.AUC/3126/1982 and other record proceedings under Section 10(6) and give evidence in the suit, O.S.No.409 of 2015.

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BSB, J C.R.P.No.3112 of 2023

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(c) The 1^st respondent/plaintiff filed counter opposing the petition and stating that under Rule 129 of the Civil Rules of Practice, unless the court considers production of original is absolutely necessary or is satisfied that the petitioner has made an application for certified copy of the original documents but could not obtain the same, public documents from the authority cannot be summoned. In the application, the petitioner did not state that he made an application for certified copies. The petitioner just stated that the documents are relevant and have a bearing on the issues in the suit. The issue in the present suit is about the landlord and tenant relationship and termination of tenancy whereas the issue with Urban Land Ceiling Authority is about the right of the said authority to proceed further in respect of the land. When an application for exemption under Section 20 of the Act was pending and more particularly, after repeal of the Act, and when there was no vesting of the land under Section 10(3) of the Act and no physical possession under Section 10(6) of the Act, it is erroneous to say that the issue with the Authority under the Urban Land Ceiling Act which is the subject matter of W.P.No.23838 of 2008 has a direct bearing on the issue in this suit. This is nothing but a deliberate attempt to drag on the proceedings in the suit. Hence, the petition is liable to be dismissed.

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After hearing both parties, agreeing with the objection raised by the 1^st respondent on the strength of Rule 129 of the Civil Rules of Practice and Section 77 of the Indian Evidence Act, 1872, the trial Court dismissed the

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BSB, J C.R.P.No.3112 of 2023

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petition and it also observed that the 1^st respondent expressed that he has no objection if the certified copies of the documents sought to be summoned are produced notwithstanding the relevancy or otherwise of the documents. Therefore, without going into the justifiable reason for producing the documents in evidence, the petition was disposed of.

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Aggrieved by the order, the petitioner approached this Court in this revision.

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The learned counsel for the petitioner vehemently contended that there was a direction for the early disposal of the suit within three (3) months and a larger part of the time was consumed by the plaintiff to lead evidence on one ground or the other and at the fag-end of the stipulated time, when the turn of the defendant came for leading evidence, the trial Court was posting the matter day by day, and thereby, the petitioner had chosen to call for the original record instead of applying for certified copies which would take long time. He further submitted that due to repeal of the Act, there may also be difficulty in obtaining the certified copies and to avoid delay in view of the time stipulated for disposal of the suit, this is the remedy for the petitioner to call for the original record. He further submitted that since the 1^st respondent admitted certain facts before the Urban Land Ceiling Authority which are necessary for consideration in evidence in the present suit for eviction, it is also necessary to get the original record being produced by the competent authority and give evidence or else, there is

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BSB, J C.R.P.No.3112 of 2023

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possibility of the 1^st respondent denying even the certified copies and the contents thereon.

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On the other hand, the learned counsel for the 1^st respondent submitted that they are all not part of the record as reasons shown in support of the petition. He further submitted that the defence taken in the written statement is known when the written statement was filed, and therefore, the petitioner need not wait till the turn to lead evidence has reached, and therefore, there is no point in contending that due to the time stipulated for disposal of the suit, there is justification in filing the petition. He further stated that if at all the Special Officer and Competent Authority under the Act is not working in view of the repeal of the Act, the petition itself is also not maintainable as the authority to whom summons should be sent for production is a question. Therefore, he submitted that the petitioner can approach the concerned authority to obtain certified copies and file the same and moreover, the 1^st respondent had given consent for marking them which was recorded in the order impugned itself. He further submitted that since the requirements under Rule 129 of the Civil Rules of Practice have not been complied, the petition cannot be allowed, and therefore, it was rightly dismissed. He placed reliance on the decision in Oguruboina Prasad Vs. Kunam Srinivasulu¹ and the decision in D.Ram Mohan Rao Vs.

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1 2022 SCC OnLine AP 2536

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BSB, J C.R.P.No.3112 of 2023

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M/s. Sridevi Hotels Pvt. Ltd. Rep. by Managing Director Sri Mohan

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Reddy and others² .

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The trial Court recorded that the relevancy of the documents for adjudication of the dispute is part of the trial and the same would be decided later. ‘No objection’ was also reported if certified copies of the documents sought to be produced are filed in evidence notwithstanding the relevancy or otherwise of the documents. Therefore, now, the relevancy of the documents is not denied.

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Rule 129 of the Civil Rules Practice, 1980 read as under:-

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Rule 129. Production of records in the custody of a Public Officer other than a court :-

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(1) A summons for the production of records in the custody of the Public Officer other than a court shall be in Form No. 23 and shall be addressed to the Head of the office concerned and in the case of a summons to a District Registrar or a Sub-Registrar of Assurances, it shall be addressed to the Registrar or Sub-Registrar in whose office, or suboffice, as the case may be, the required records are kept.

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Provided that, where the summons is for the production of village accounts, including filed measurement books, such summons shall be addressed to the Tahsildar or the Deputy Tahsildar in independent charge as the case may be.

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Provided further that when the summons is for production of records in the custody of high dignitaries like the Speaker of the LokSabha or State Legislative Council etc., the summons shall be in the form of a letter of request in form No. 23-A.

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2 2005 (6) ALT 712

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BSB, J C.R.P.No.3112 of 2023

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(2) Every application for such summons shall made by an affidavit setting out(1) the document or documents the production of which is require; (2) the relevancy of the document or documents; and (3) in cases where the production of a certified copy or copies and the result of such application.

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(3) No court shall issue such summons unless it considers the production of the original necessary or is satisfied that the application for a certified copy has been duly made and has not been granted. The court shall in every case record its reasons in writing and shall require the applicant to deposit in court, before the summons is issued, to abide by the order of the court, such sum as it may consider necessary to meet the estimated cost of making a copy of the document when produced.

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(4) On production of the document in obedience to the summons, the Court, unless it thinks fit necessary to retain the original, shall direct a copy to be made at the expense of the applicant, and shall with all convenient speed return the original retaining the copy.

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(5) Unless the court requires the production of the original, every such summons to a public officer shall state that he is at liberty to produce, instead of the original, a copy certified in the manner prescribed by section 76 of the Evidence Act.

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(6) Nothing in the above rules shall prevent a court of its own motion from issuing a summons for the production of public records or other documents in the custody of Public Officer in accordance with sub-rule (1), if it thinks it necessary for the ends of justice to do so. The court shall, in every case, record its reasons in writing.”

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10. In Oguruboina Prasad Vs. Kunam Srinivasulu (1 supra), it

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was held at paras 11 & 12 as follows:

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“11. Undoubtedly, APSPCDL is a public authority. As per Rule 129 of the Andhra Pradesh Civil Rules of Practice, no Court shall issue summons unless it considers the production of the original necessary or is satisfied

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BSB, J

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C.R.P.No.3112 of 2023

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that the application for a certified copy has been duly made and has not been granted. The affidavit filed in support of the petition does not disclose regarding the revision petitioners making application to the authority to get the particulars. However, ground was raised in the grounds of appeal stating that there is no possibility of getting certified copy of documents. Without making any effort to get the certified copy, interlocutory application is filed. It is for the defendant to get the certified copy by furnishing the information. Thus without making any effort, no Court shall issue summons, unless production of such document is necessary.

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The order of the lower Court is neither perverse nor amounts to failure to exercise jurisdiction vested with it. Hence, the order of the trial Court dismissing the petition does not call for interference of this Court under Article 227 of the Constitution of India.”

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(b) In D. Ram Mohan Rao (2^nd supra), it was held at paras 18, 19 and 21 as

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follows:

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“18. As per Sub-rule (2) of Rule 129 of Civil Rules of Practice, every application for such summons shall be made by an affidavit setting out the document the production of which is required, the relevancy of such document and in cases where the production of a certified copy would answer the purpose, whether such application was made to the proper officer and the result of such application. That apart, Sub-rule (3) also makes it clear that before issuing the summons the Court shall be satisfied that the production of such original document is necessary and shall record its reasons in writing. In the alternative, it has to be established to the satisfaction of the Court that the application for a certified copy has been duly made and has not been granted. The said requirements are also clear from the language of Form No. 23 in which the summons have to be issued by the Court under Sub-rule (1) for production of the records in the custody of a Public Officer.

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Admittedly, in the case on hand, the defendant failed to take any steps for obtaining the certified copies of the documents in question from the concerned officer. As a matter of fact, his affidavit was totally silent on the said aspect.

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BSB, J C.R.P.No.3112 of 2023 Though the learned Counsel for the petitioner submits that it is not possible for a third party to obtain the certified copies of the Income Tax Returns of a particular assessee, I am unable to accept since unless such an application is made and rejected, it cannot be assumed that it is impossible to obtain the certified copies.

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For the aforesaid reasons, I am unable to hold that the Court below has committed any error in rejecting the application in question. The impugned order cannot be said to be vitiated on account of any patent error of fact or law, warranting interference by this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.”

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The learned counsel for the petitioner further submitted that an additional affidavit is filed by the 1^st respondent stating that the relief in the suit has become infructuous, and thereby, the revision petition has also become infructuous and therefore, the same may be recorded. However, he denied the allegation that that the petitioner vacated the property. In this regard, he further submitted that the lease deed covers two separate properties of two owners and it is only the other part of the property that was vacated on settlement of disputes with that owner, whereas the property of the 1^st respondent herein is still in occupation of the petitioner with regard to the go-down standing on it. In view of the dispute as to the possession still being claimed by the petitioner denying the alleged vacation of the property, this Court cannot record the same so as to dismiss the revision petition as infructuous.

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In view of the above noted rule and the ratio in the decisions cited, it is for the petitioner to take steps for obtaining certified copies of the

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BSB, J C.R.P.No.3112 of 2023

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documents summoned and it is only on proof of such steps being taken, the documents sought to be summoned can be directed to be produced. Except making submissions across the Bench, no reason was given in the affidavit of the petitioner as to how the requirements under Rule 129 of the Civil Rules of Practice have been complied. The trial Court has rightly dismissed the petition in view of the express provision under Rule 129 of the Civil Rules of Practice.

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The learned counsel for the petitioner has further stated that the record containing the original signatures are sought to be summoned. In fact, there is no such prayer. What is sought to be called for is the original record and no reason is assigned that the record containing the original signatures of the party is required. It is now a development in the argument.

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Nextly, he further submitted that the trial Court has not even given an opportunity or liberty to apply for certified copies of the documents and file them while dismissing the petition, and thereby, the interest of the petitioner is affected. When the 1^st respondent has given consent for production of the certified copies, there need not be any express permission or liberty to be granted to the petitioner. Even during the course of arguments before this Court, the learned counsel for the 1^st respondent reiterated the consent given before the trial Court regarding the ‘no objection’ for production of the certified copies.

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Since there is no merit warranting interference with the order impugned in this revision, the revision petition is liable to be dismissed.

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Accordingly, the Civil Revision Petition is dismissed. However, in view of the ‘no objection’ reported for production of the certified copies of the documents sought to be summoned, it is open for the petitioner to file such evidence.

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There shall be no order as to costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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___________________ B.S.BHANUMATHI, J

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02-04-2024 RAR

M/S.Ushodaya Enterprises Private Limited v. Musunuru Apparao

Case brief

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M/S.Ushodaya Enterprises Private Limited v. Musunuru Apparao

Case brief

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