Disposed

Smt Goundala Padmamma, v. Sri Palle Veeraiah

Telangana HC23 Dec 2011CRP/4089/2011

Case brief

AI extract

What is this about?

In a revision petition concerning an application to file an additional chief affidavit in a property partition suit, this court set aside the lower court's order dismissing the application for incomplete filing and directed that an opportunity be given to file the affidavit before deciding.

What did the court decide?

The impugned order setting aside the primary application order was quashed; the primary application order was set aside and the petitioner directed to file an additional affidavit in chief by 30.12.20

Smt Goundala Padmamma, Vs Sri Palle Veeraiah — Partition | Telangana HC (2011)

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HON’BLE Ms. JUSTICE G. ROHINI

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Civil Revision Petition No. 4089 of 2011

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Date: 23.12.2011

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Between:

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Smt. Goundala Padmamma … Petitioner And Sri Palle Veeraiah and 2 others. … Respondents

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HON’BLE Ms. JUSTICE G. ROHINI Civil Revision Petition No. 4089 of 2011

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O R D E R :

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The revision petitioner is the plaintiff in O.S.No.168 of 2006 on the file of the Court of the Senior Civil Judge, Vikarabad, R.R. District. The suit is filed against the respondents herein seeking decree for partition and separate possession of the suit schedule properties. The defendants filed their written statement contesting the suit claim and the issues were settled.

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During trial, the plaintiff filed her affidavit dated 18.07.2011 in lieu of chief-examination as P.W.1. Before the cross-examination was taken up, she filed I.A.No.656 of 2011 with a prayer to eschew her chief affidavit pleading that the contents of chief affidavit dated 18.07.2011 were contrary to her pleadings. The said application was dismissed by the Court below by order dated 10.08.2011.

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Thereafter, the petitioner filed I.A.No.715 of 2011 seeking permission to file additional chief affidavit to prove her case. The said application was dismissed with costs by the Court below by order dated 09.09.2011. Hence, the present revision petition by the plaintiff. I have heard the learned counsel for both the parties.

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A perusal of the order under revision shows that the petitioner’s application was dismissed mainly on the ground that the plaintiff failed to enclose the additional chief evidence along with the application so as to enable the Court to know whether the additional chief affidavit is in accordance with her plaint pleadings or contrary to it.

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Whereas the learned counsel for the petitioner submitted that having regard to the facts and circumstances of the case, the Court below ought to have given an opportunity to the plaintiff to lead further evidence in chief, the learned counsel for the respondents vehemently contended that the question of permitting the plaintiff to file additional chief affidavit does not arise in the absence of any amendment to the pleadings and therefore the Court below has rightly dismissed the application.

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It is true that the evidence already given cannot be eschewed on the ground that it is contrary to the pleadings. However, there can be

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no bar as such to permit the party to give further evidence in chief.

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In the instant case, admittedly, the plaintiff did not file the additional chief-affidavit along with her application and therefore, there was no opportunity to the Court to see whether the chief evidence sought to be let in by the plaintiff was in terms of her pleading or not.

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Having regard to the facts and circumstances noticed above, this Court is of the opinion that instead of dismissing the application in limini, the Court below ought to have given an opportunity to the plaintiff/revision petitioner to file her additional affidavit in chief and in case it is found contrary to the pleadings, it is always open to the Court below to disallow the same.

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Accordingly, the order under revision is hereby set aside and the revision petition is disposed of directing the revision petitioner/plaintiff to file her additional affidavit in chief before the Court below on or before 30.12.2011. If any such affidavit is filed within the time fixed above, the Court below shall consider I.A.No.715 of 2011 and pass appropriate orders afresh after hearing both the parties following due process of law.

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The Civil Revision Petition is accordingly disposed of. No costs.

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______________ G. ROHINI, J Date: 23.12.2011 Note: Issue C.c. by tomorrow. B/o KLP

Smt Goundala Padmamma, v. Sri Palle Veeraiah

Case brief

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Smt Goundala Padmamma, v. Sri Palle Veeraiah

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