Allowed

M/s. Rouf and Sons Estates (Regd) Firm v. Palem Mallikarjuna Reddy

Telangana HC22 Feb 2012CRP/645/2012

Case brief

AI extract

What is this about?

This Civil Revision Petition challenged an order reopening evidence in a specific performance suit. The Court held that while the procedure is the handmaid of justice, it is the party's duty to satisfy the court with sufficient reasons for reopening. Though the lower court failed to adequately address the petitioner's defense, the High Court did not interfere with the reopening order but imposed c

What did the court decide?

Petition dismissed subject to payment of Rs.10,000/- costs and directions to deposit within two weeks to lead further evidence; interim order vacated.

M/s. Rouf and Sons Estates (Regd) Firm Vs Palem… — Specific Performance | Telangana HC (2012)

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*** The Hon'ble Sri Justice C.V.Nagarjuna Reddy**

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+ Civil Revision Petition No.645 of 2012

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% Date: 22-02-2012

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Between:

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# M/s.Rouf & Sons Estates (Regd. Firm) its Managing Partner P.Abdul Rouf Khan and 2 others

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..... Petitioners

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AND

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$ Palem Mallikarjuna Reddy and 4 others

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.....Respondents

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^ Counsel for the Petitioners: Sri AV.Seshasai ! Counsel for respondent Nos.1 to 4: Sri SV.Bhatt

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< Gist:

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Ø Head Note:

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? Cases referred:

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(1969) 1 SCC 869

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The Hon'ble Sri Justice C.V.Nagarjuna Reddy

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Civil Revision Petition No.645 of 2012

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Date: 22-02-2012

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Between:

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M/s.Rouf & Sons Estates (Regd. Firm) its Managing Partner P.Abdul Rouf Khan and 2 others

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..... Petitioners

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AND

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Palem Mallikarjuna Reddy and 4 others .....Respondents Counsel for the Petitioners: Sri AV.Seshasai Counsel for respondent Nos.1 to 4: Sri SV.Bhatt

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The Court made the following :

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Order:

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This Civil Revision Petition arises out of Order, dated 19-01-2012, in IA.No.23 of 2012 in OS.No.4 of 2006, on the file of the Court of the learned IV Additional District Judge, Kadapa.

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The petitioners are defendant Nos.1 to 3 in the suit filed by respondent Nos.1 to 4 for specific performance of an agreement of sale. After completion of evidence of plaintiff No.2 as PW.1, the same was closed as no further

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evidence was let in by the respondents upto 15-12-2011. When the case was posted for defendants’ side evidence, the respondents have filed IA.No.23 of 2012 for reopening the evidence, for adducing further evidence, on their behalf. Petitioner No.1/defendant No.1 filed a counter-affidavit wherein he has seriously resisted the respondents’ application. However, by the Order, which is assailed in this Civil Revision Petition, the learned IV Additional District Judge, Kadapa, allowed the said application.

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I have heard Sri AV.Seshasai, learned Counsel for the petitioners/defendant Nos.1 to 3, and Sri SV.Bhatt, learned Counsel for respondent Nos.1 to 4/plaintiffs.

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In the affidavit filed in support of their application, the respondents have stated that, after plaintiff No.2 was examined as PW.1, they left for to pilgrimage in the first week of November, 2011, and returned only in December, 2011, and that therefore, they could not meet their Advocate and instruct him to prepare for further evidence. As noted above, petitioner No.1/defendant No.1 filed a detailed counter-affidavit wherein he has inter alia stated as under:

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“At the outset, it is submitted that the present petition is nothing but an abuse of process of law. It is simply urged in the petition that the petitioner along with all other petitioners have went on pilgrimage during first week of November, 2011 and returned in second week of December, 2011, and therefore, they could not contact their Advocate to prepare their evidence. The said reason is untenable and utter false. Even if it is true for argument sake, the said reason cannot be stand as good and valid reason to reopen the matter. It shows that the petitioner and other petitioners are no diligent, but negligence in prosecuting the matter.

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Further, it may be observed that PW.1 was cross-examined on 19-10-2011 and 21-10-2011 and it is posted for further evidence ot 04-11-2011. If really the petitioners are diligent, they have got ample time from 21-10-2011 to 04-11-2011. But on 04-11-2011, it was simply reported as ‘not ready’ and the suit is posted to 30-11-2011 even on which day there was same representation. So, the suit was again posted to 15-12-2011. Surprisingly on 15-12-2011, there was no representation and as no witness was present, the Hon’ble Court was pleased to close their evidence and posted for Defendants side evidence to 22-122011. It may be observed that the reason urged in the present petition was never brought to the notice of the Court in either of these adjournments.

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On 22-12-2011, the evidence on behalf of Defendants could not be produced due to ill health of DW.1 and the matter was posted to 04-01-2012. As undertaken before the Court on 22-12-2011, the evidence of the Defendants is produced on 4.1.2012 by filing Chief-Examination affidavit of DW.1. At this juncture, the Court may observe that if really the petitioners are diligent and even it is believed that they really went on pilgrimage and returned in second week of December, they have got ample of time from 15-12-2011 to 4.1.2012 to produce their evidence. After commencement of evidence on behalf of Defendants, now the petitioners have come up with Chief-Examination affidavit of PW.2 and requesting the Court to reopen the matter.”

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Even though the lower Court has made a brief reference to the averments in the Counter-affidavit on the absence of reasonable cause, it has not dealt with the same in detail. The lower Court has not tested the reasons put forth by the petitioners with reference to the averments in the counter-affidavit. It has termed the objections raised by the respondents as too technical and felt that the petitioners need fresh opportunity to adduce further evidence in support of their pleadings.

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It is no doubt true that the procedure is the handmaid of justice and a catena of judgments of the apex Court and this Court leaned towards liberal approach being shown by the Courts in considering applications of this nature. While dealing with an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short ‘the CPC’), the Supreme Court in Jai Jai Ram Manohar Lal vs. National

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Building Material Supply, Gurgaon^[1] , held as under:

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“5….. Rules of Procedure are intended to be handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. (emphasis added).”

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However, the Courts cannot be just swayed away by such liberal approach without examining whether the reasons put forth by the parties are true and they constitute sufficient explanation for their failure to avail opportunities presented to them. Except stating that the petitioners have left on pilgrimage, no further details have been given in that regard. The respondents tried to expose the fallacy in the case of the petitioners by closely analyzing the reasons put forth by them. The Court below, therefore, ought not to

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have ignored the averments of the respondents by terming them as too technical. It is the bounden duty of the party, who seeks reopening of evidence, to satisfy the Court that sufficient reasons existed for them for making such a request. Even though the ultimate discretion is vested in the Court to allow such requests, such discretion has to be exercised in a proper and sound manner by supporting its conclusion with detailed reasons. Sadly, the Court below has not made this approach, which is essential in adjudicating a lis in an adversarial litigation.

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Be that as it may, even though the petitioners have failed to assign proper reasons and substantiate the pleas raised by them by adducing any evidence, as opined by the Court below, giving one opportunity to them to adduce further evidence will help the Court to determine the issues involved in the suit in a proper and comprehensive manner.

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In this view of the matter, though this Court is not satisfied with the way in which the issue is dealt with by the lower Court, it is, however, not inclined to interfere with the conclusion drawn by it. However, for utter lack of diligence on the part of the respondents/plaintiffs, they should pay costs of Rs.10,000/- to the petitioners/defendants. On deposit of such costs before the lower Court, within a period of two weeks from today, they shall be permitted to lead further evidence in a time bound manner.

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It is represented at the hearing, that DW.1 had already filed his chief-affidavit. Since the respondents/plaintiffs are permitted to lead further evidence, if a request is made on

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behalf of the petitioners/defendants, further chief-affidavits on their side may be permitted to be filed.

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Subject to the above modification of the Order under revision, the Civil Revision Petition is disposed of.

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As a sequel, interim order, dated 13-02-2012, is vacated and CRPMP.No.878 of 2012 is disposed of as infructuous.

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______________________ (C.V.Nagarjuna Reddy, J)

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22^nd February, 2012

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Note: LR copy B/o LUR