Allowed

M. Subhash Chandra, v. lype Chacko

Telangana HC8 Feb 2013CRP/3545/2012

Case brief

AI extract

What is this about?

This High Court set aside the trial court's refusal to admit an affidavit in evidence issued under Order XVIII Rule 17 read with Section 151 CPC. While criticizing the trial court for insufficient reasons, the High Court allowed the civil revision petitions, directing the lower court to recall witness examination, allowing stamp duty levying if applicable, and imposing costs for the delay. The sui

What did the court decide?

Civil Revision Petitions allowed; order of trial court set aside; trial court directed to recall PW.1 for examination and allow cross-examination of attestors.

M. Subhash Chandra, Vs lype Chacko — Property and Title | Telangana HC (2013)

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IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD

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FRIDAY THE EIGHTH DAY OF FEBRUARY TWO THOUSAND AND THIRTEEN

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PRESENT

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THE HONOURABLE SRI JUSTICE R. KANTHA RAO

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CIVIL REVISION PETITION Nos. 3509 & 3545 OF 2012

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Between:

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M. Subhash Chandra and another … Revision Petitioners/ Plaintiffs V/s. Iype Chacko and 5 others … Respondents/ Defendants. Counsel for the Petitioner : Sri M. Achutha Reddy Counsel for the Respondents : Sri Vijay B.Paropkari

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The Court made the following: (Common Order follows next page)

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THE HONOURABLE SRI JUSTICE R. KANTHA RAO

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CIVIL REVISION PETITION Nos. 3509 & 3545 OF 2012

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COMMON ORDER :

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These Civil Revision Petitions are filed by the Revision Petitioners/Plaintiffs against the orders dated 12-06-2012 passed by the VII-Additional District Judge, Mahbubnagar in I.A.Nos. 283 and 284 of 2012 in O.S.No. 49 of 2010.

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2. I have heard Sri M. Achutha Reddy, learned counsel

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appearing for the Revision petitioners/plaintiffs and Sri Vijay B.Paropkari, learned counsel appearing for the

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respondents/defendants.

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3. In the course of the trial of O.S.No.49 of 2010, the plaintiffs filed I.A.No.283 of 2012 under Order XVIII Rule 17 read with Section 151 of Civil Procedure Code seeking to mark an affidavit, which is in the form of an undertaking by examining the plaintiff and the attestors of the said affidavit which was filed along with the Agreement of Sale-cum-GPA dated 22.04.2010. Admittedly, the said affidavit was filed at the time of filing of the suit. The plaintiff

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was examined before the trial Court, in chief, the affidavit was not marked and the trial of the suit proceeded with, I.A.No.284 of 2012 was filed when the matter was posed for arguments, the learned trial Court mentioned in its order that though the document was available on record at the time of examination of PW.1, it was not marked on the ground that it cannot be marked through P.W.1 and also for some other reasons of levying stamp duty and penalty. The trial Court did not state in its order how the stamp duty was inadequate and the necessity for levying the penalty. The findings recorded by the learned trial Court that the affidavit was not marked as it cannot be marked through PW.1 and for some other reason of stamp duty and penalty. The Court also did not specify in its order why the affidavit was liable for levying stamp duty and penalty.

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4. It is contended by the learned counsel appearing for the respondents/defendants that the affidavit was sought to be marked through PW.1 when the suit was posted for arguments and as the said affidavit was not attested, it cannot be marked through P.W.1. In response thereto, the learned counsel appearing for the revision petitioners/plaintiffs would submit that though the application is titled as affidavit, in fact it is an undertaking written on a Non-Judicial Stamp worth Rs.100/- and therefore, it is not subject to levying of

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any stamp duty or penalty. A perusal of the document clearly indicates that though it is titled as affidavit in fact it is an undertaking. In any event, if the said document is liable for levying the stamp duty and penalty, the learned trial Court ought to have levied and afforded opportunity to the petitioners to pay the same. The contention of the revision petitioners is that they filed the suit for declaration that the Agreement of Sale-cum-GPA, dated 22.04.2010 null and void and for recovery of possession and to substantiate their contention in the suit, the affidavit which is ought to be marked is a crucial document and denial by the trial Court resulted in substantial injustice to them.

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5. Considering the submissions made by the learned

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counsel on both sides, I am of the view that no sufficient reasons were recorded by the trial Court for refusing to receive the affidavit in evidence. The order passed by the trial Court is not sustainable in law. However, when the trial Court refused to mark the affidavit while P.W.1 was examined before it, the petitioners ought to have filed an application insisting upon the trial Court to mark the said

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document but the petitioners kept quiet till the closure of the evidence the suit was posted for arguments. There are latches on

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the part of the petitioners in making the present application. Therefore, the order passed by the trial Court dismissing the I.A. No.284 of 2012 in O.S No.49 of 2010 is set aside and the trial Court is directed to recall P.W.1 for further examination and afford opportunity to examine the attestors of the affidavit. If the trial court is of the view that the affidavit shall be levied with stamp duty and penalty it can do so, having regard to the relevant provisions under the Indian Stamp Act. As there were latches on the part of the petitioners/plaintiffs in filing the petition at a belated stage, the petitioners are directed to pay costs of Rs.1,000/to the respondents/defendants within a period of 20 days from the date of receipt of this order.

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6. In the result, subject to the above condition of paying costs of Rs.1,000/- to the respondents/defendants the Civil Revision Petitions are allowed. The trial Court is directed to dispose of the suit within in a period of two months from the date of receipt of a copy of this order.

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___________________________ JUSTICE R. KANTHA RAO.

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08/02/2013 Gvl/IsL.

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THE HONOURABLE SRI JUSTICE R. KANTHA RAO

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CIVIL REVISION PETITION Nos. 3509 & 3545 OF 2012 COMMON ORDER

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DATE: 08.02.2013.

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GvL/IsL.

M. Subhash Chandra, v. lype Chacko

Case brief

What is this about?

What did the court decide?

M. Subhash Chandra, v. lype Chacko

Case brief

What is this about?

What did the court decide?

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