Allowed

Gunreddy Shekhar Reddy v. Beejala Jagannadham

Telangana HC10 Oct 2014CRP/2063/2014

Case brief

AI extract

What is this about?

The High Court allowed the civil revision petition, setting aside the trial court's order dismissing an application to amend pleadings. The revision court held that trial had not commenced as the plaintiff's witness had not appeared for cross-examination, applying the Supreme Court's precedent that trial begins with the chief examination available for cross-examination.

What did the court decide?

Impugned order set aside; I.A.No.108 of 2014 directed to be decided afresh.

Gunreddy Shekhar Reddy Vs Beejala Jagannadham — Property and Title | Telangana HC (2014)

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THE HONOURABLE SRI JUSTICE A. RAJASHEKER REDDY

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Civil Revision Petition No.2063 of 2014

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ORDER

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This civil revision petition is directed against the order dated 12.06.2014 passed in I.A.No.108 of 2014 in O.S.No.36 of 2006 by the learned Principal Junior Civil Judge, Kalwakurthy.

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2. The petitioner herein is the first defendant in O.S.No.36 of 2006 on the file of Principal Junior Civil Judge, Kalwakurthy, which was filed for perpetual injunction in respect of the lands in Sy.Nos.30/AA, 43/A and 43/AA, situated at Anneboinpally Village of Madgul Mandal. The petitioner contested the said suit by filing a written statement. He also filed another suit in O.S.No.120 of 2005 seeking partition of the lands in Sy.Nos.43 and 30 of the same village. Both the suits were clubbed since common issue is involved. When the matters came up for trial, the petitioner filed I.A.No.108 of 2014 in O.S.No.36 of 2006 seeking to amend the written statement by incorporating paragraph No.16, wherein he raised a plea that the partition deed relied on by the plaintiff was executed by an incompetent person representing the minor and also the right of second defendant to sell the land. The said application was dismissed by the order impugned. Aggrieved by the same, the present civil revision petition is filed.

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3. Learned counsel for the petitioner submits that the trial Court dismissed the I.A. only on the ground that the trial has commenced, but the trial has not been commenced as P.W.1 only filed his chief affidavit in support of his contentions. He further submits that the trial commences only after settlement of issues.

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In support of his contention, he relied on the judgment of the Supreme Court in BRIJ GOPAL PALLOD v. MUNICIPAL COUNCIL REPRESENTED BY G. VASUDEVA REDDY, ASSISTANT EXECUTIVE ENGINEER, ZAHEERABAD MUNICIPALITY, MEDAK DISTRIC T^[1] .

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4. On the other hand, learned counsel for the respondents submits that since P.W.1 has filed chief affidavit, the trial has commenced. He relied on the judgment of the Apex Court in KAILASH v. NANHK U^[2] . He contended that though the partition deed was executed in the year 1986 and the suit is filed in the year 2006, the plea raised by the petitioner with regard to competency of person, who executed the partition deed, is untenable and further, no reasons are made out for filing the impugned application at a belated stage.

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5. A perusal of the impugned order shows that the Court below dismissed the application mainly on the ground that the trial has commenced since the issues were settled, but even according to both the counsel, P.W.1 only filed his chief affidavit. These aspects have not been considered by the trial Court. I n Brij Gopal Pallod’s case (1 supra), the Apex Court held as under;

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“The safest approach seems to be that the trial of the suit can be said to have commenced when the trial Court makes the chief-examination of the first witness in the suit presented in the form of an affidavit, as part of record, after verification of its content, and on an examination of the documents mentioned therein from the point of view of admissibility, and when such witness is available for crossexamination by the opposite party”.

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Coming to the facts of the present case, it is not in dispute that the recording of evidence has not commenced in the suit. It is also relevant to take note of the plea of the petitioners herein in their counter filed by them, opposing the I.A. In paragraph 6, it was stated “the petitioner is further

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precluded for filing of amendment of pleadings “after the suit is set down for trial”. As observed earlier, the suit can be said to have been ‘set down’ for trial, if only the witness enters the witness box and offers himself for cross-examination. If a witness has simply filed affidavit and did not turn up for crossexamination at all, or if that stage did not reach, it is difficult to infer that the trial of the suit commenced”.

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The aforesaid judgment was rendered in almost similar circumstances alleging in this case, as such, mere filing of chief affidavit by P.W.1 cannot be treated as commencement of trial. Therefore, the impugned order is set aside, and the trial Court is directed to decide I.A.No.108 of 2014 in O.S.No.36 of 2006 afresh, after considering other pleas raised by both sides.

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6. With the above direction, the Civil Revision Petition is allowed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this revision shall stand closed.

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________________________ A. RAJASHEKER REDDY, J.

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10^th October, 2014 sj

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[1] 2013 (2) ALT 353

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[2] 2005(4) ALT 30.2 (DN SC)

Gunreddy Shekhar Reddy v. Beejala Jagannadham

Case brief

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Gunreddy Shekhar Reddy v. Beejala Jagannadham

Case brief

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