The Church of South India Trust Association Vs Vijay Sahara Naveen Shailender

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[³⁴⁸⁶ I

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE THIRTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX

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PRESENT

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THE HON'BLE SRI JUSTICE VAKITI RAMAKRISHNA REDDY

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CIVIL REVISION PETITION NO: 3867 OF 2023

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Petition under Article 227 of the Constitution of lndia aggrieved by the order dated 26-12-2023 passed in OS.No.11 ot 2014 on the file of the Court of the Principal District Judge, Nizamabad.

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Between:

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'l . The Church of South lndia Trust Association, (Medak Diocese) (wrongly shown as Medak Diocese, it is only The church of South lndia Trust Association), having its registered office at 5, Whites road, Royapettah Chennai rep.by its Director / authorized signatory Prof. Dr. B. Vimal Sukumar, S/o. Rt. Rev. Dr. B.P. Sugandhar, aged about 51^years having its Diocesan office at^'10-3-t65, Diocese office, Old lancer lane, Secunderabad

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Bishop at Medak, Church of South lndia Trust Association, Medak Diocese at 10-3-165, Diocese office, Old lancer lane, Secunderabad rep.by Rt.Rev.K.Padma Rao s/o Late.f/anikyam, aged about 63^years, Bishop in CSI Dornakal Diocese and Moderators Commissary and Bishop (i/c) of Medak Diocese

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...Petitioners

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AND

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Vttay Sahara Naveen Shailender, s/o Late.V.S.Surya Prakash James, 40 years, Business rlo 11-2-238 Christian colony, Kanteswar Nizamabad

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Samala Ranjit Reddy, s/o S. Raja Reddy 40^years, Business r/o 6-26, Gangastan Phase-lll, Gupanpally (v) Nizamabad Mandal and District.

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...Respondents/Plaintiffs

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lA NO: 2 OF 2023

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Petition under Section^'151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Gourt may be^pleased to stay all further proceedings in OS.No.1112014 passed by the court of Prl.District Judge, Nizamabad, pending disposal of CRP.No.- /2023.

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Counsel for the Petitioners: Sri J. Prabhakar, Senior Counsel representing Sri A. Srinivas

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Counsel for the Respondents: Sri Ch. Siddhartha Sarma, Counsel representing Sri B. Shiva Teja

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The Court made the following: ORDER

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HIGH couRr "?I;+3fffi"XrF TELANGANA

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THE HON'BLE SRI JUSTICE VAKITI RAMAI(RISHNA REDDY

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CML REVISION PETITION No.3867 of 2ot23

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Date: L3.O2.2O26

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Between:

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The Church of South lndia Trust and others

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Petitioners

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AND

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Vtjay Sahara and others

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....Respondents

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ORDER:

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This Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioners/defendants assailing the docket order dated 26.12.2023 in O.S. No. 11 of 2024 on the file of the learned Principal District Judge, Nizamabad (for short the learned Trial Court).

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The respondents/plaintiffs instituted O.S. No.11 of 2OL4 on the file of the learned Prl. District Judge, Nizamabad seeking the relief of specific performance of contract in respect of subject property. The said suit was initially disposed of by judgment dated 12.02.2015. Subsequently, the suit was restored on 29-08-2023. Thereafter, notices 'were issued; written statementwas taken on record, issues were frarned on 13.IO.2O23 and the matter was posted for trial. The petitioners examined PW- 1 and PW-2. Upon completion of evidence on behalf of plaintiffs, the learned Trial Court, by docket order dated 26.03.2023,

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posted the, matter to 09.01 .2024 under the caption 'hearing for judgment'.

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3- The grievance of the petitioners/defendants is that the suit was posted under the caption hearing for judgment' without affording them an opportunity to cross examine the witnesses examined on behalf of the plaintif[s and also to adduce evidence on behalf of the defendants. Hence, the: present civil Revision petition has been filed by the defendants against the docket order dated 26.03.2023 passed by the Trial Court.

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Hearrl Sri J. Prabhakar, learned Senior Counsel representing Sri A. Srinivas, learned counsel appearing for the revision petitioners and Sri ch. Siddhartha Sarma, learned counsel representing Sri B. Shiva Teja, learne d counsel for the respondents.

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Sri J. Prabhakar, learned Senior Counsel representing the learned counsel ap,pearing for the petitioners/defendants submits that the learned Tri;rl Court failed to adhere not only the principles of natural justice, which are inherent in all judicial proceedings, but also to the mandatory procedure prescribed under the Code of Civil Procedure and the civil Rules of Practice. It is contended that though the junior counsel appearing for the petitioners/defendants was present before the Trial Court on 26.L2.2o23 and sought to file an adjournment petition, while bringing to the notice of the Court certain serious procedural

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r f

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irregularities, the learned Trial Court declined to receive the same, treated the arguments of the plaintiffs as heard, and posted the suit for judgment on 09.o 1.2024, despite the fact that the adjournment petition was thereafter filed in the concerned section/office of the learned Trial Court.

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6- The learned Senior Counsel further submitted that the Trial Court proceeded on an erroneous assumption as if the petitioners/defendants were set ex pafte and that the plaintiff was leading exparte evidence. In fact, the earlier ex parte decree dated r2.o2.2o15 had already been set aside, pursuant to order passed in cRp No.22o4 of 2022 dated ol.o2.2o23. Thereafter, the w,ritten statement was liled and issues were also framed on 13.Lo.2o23, from which date the matter was posted to O1 .Ll.2023 for trial. [n such circumstances, the defendants were entitled to participate fully in the trial.

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7 - The learned Senior Counsel further submitted that the learned Trial Court also declined to hear the representation made on behalf of the petitioners/defendants on 26.12.2Cr23 and proceed further thereby completely denying them an effective opportunity of participating in the trial, leading to a clear denial of fair opportunity and violation 9f the principles of natural justice.

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The learned Senior Counsel also submitted that the affidavits of evidence, namely the chief affidavits of pw-l and pw-2, were not served

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either on th3 defendants or on their counsel, thereby causing serious prejudice to their defence.

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Learnt:d counsel for the respondents, while uot seriously disputing the factual sequence, would submit that the learned Tribial Court was justilied in proceeding with the matter, as adequate opportunities had been afforded earlier and the petitioners cannot seek to protract the proceedings.

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In the light of the above submissions the only point that arises for consideration is:

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Wheth,er the revision petitioners/defendants were denied a fair opportunity to contest the suit in O.S.No.11 of 2Ol4 in accordance^with Iaw?

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1 1. It is pertinent to note that on 27.12.2023 this Court^granted stay of all further proceedings in O.S.No.11 of 2OI4 pending consideration of the present revision. A perusal of the record discloses that the^{suit was} initially disposed of on 12.O2.2OL5. Thereafter, defendants^{filed I.A.} No.51 of 2O'),O in O.S.No.11 of 2Ol4 along with written^{statement before} the learned Trial Court seeking to condone the delay of^{1739 days in} filing the application seeking to set aside the exparte^{decree dated} 12.02.2015 in O.S.No.11 of 2014. However, the learned Trial Court dismissed I.A.No.S\ of 2O2O on 28.07.2022. Aggrieved thereby, the defendants filed C.R.P.No.22O4 of 2022, which w,as allowed by this

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court on 01.o2.2o2s. In pursuance thereot, the learned Trial court issued notices to the parties, framed appropriate issues and commenced the trial by examining pws 1 and 2. However, no opportunity was afforded to the defendants either to cross examine pws 1 and 2 or to adduce evidence in support of their case. Instead, the matter was posted for "hearing for judgment,.

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12' As rightty contended by the learned counsel for the defendants, the learned Trial Court proceeded with the suit proceedings as if it was an ex parte proceedings. In the instant case, the defendants filed written statement and the learned Trial Court also posted the matter for trial after framing certain issues. In such circumstances, the Trial court ought to have given an opportunity to the defendants to rebut the evidence put forth by the plaintiffs. It is the specific contention of the defendants that despite expressing the intention of filing a petition by the junior counsel for the defendants to adjourn the case so as to enable the defendants to cross examine the witnesses examined on behalf of the plaintiffs and also adduce evidence on their behalf, the learned Trial Court erroneously proceeded further without affording any such opportunity to the defendants.

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13' It is trite that once a written statement is filed and issues are framed, the proceedings cannot be treate d, as exparte. The defendant has a valuable and surbstantive right to rebut the plaintiffs, evidence

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both by way of cross-examination^{and by leadingindependent evidence.} Denial of such opportunity^{strikes at the root of fair trial.}

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A cour-t cannot^{generallypost a suit for hearing on judgment} immediately after recording^{the plaintiffsevidencewithout giving the} defendant art opportunity^{to lead evidence, as the Same would amount} to violation of^{principlesof natural justice and the procedural law under} Orders XVIII and^{XIX of the Code of Civil Procedure. A defendant cannot} be denied spch a^{valuable and substantiveright to rebut the plaintifls} case, unless such^{right is forfeited by operationof law or by deliberate} defalt. The right to cross^{examineor to adduce evidenceis not a mere} formality, it is an integral^{componentof fair trial. If such valuable right} is denied, it inevitably^{results in causing any amount of prejudice,as to} the deflendernt is deprived^{of an opportunity to establishhis o'vn} contentions.

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ln Arraaubkhan^{Noorklnn Pathan u. State of MaharasLfiral the} Honourable Supreme Court^{after referringto earlier constitutionBench} and other decisions observed^{as under:}

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"23.AConstitutionBencho.fthi.sCourtinStateofM.P.u. Chintt1g4n@,AIR1961SC1623,leldthat tn" *7"" ii not rolfi@'requiie^{tiat a paitl riust be giuen the} opportunitu to^{ad.duce all releuanteuidenceupon which he relies,} and fitrther that,^{the euid.ence of the oppositepartq shouldbe taken} in hk^presence, and.^{tLtat he should. be giuen the opporhtnituof} cross-examininq the^{uitnesses examined bU that parU"t' Not} prouiclinT the s,aid" opporfunitU to^{cross-e&amineutitnesses,would} 'uiolalz the principtes of nahtral justice. (See also: Union of India

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' lzot:;4^scc.t65

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16.Inthepresentcase,thedenialofopportunitytothedefendantsto cross-examinePw-landPW-2andtoleadevidenceinsupportoftheir defence^{clearlyamounts to violation of principles of natural justice and} itconstitutesanerrorapparentonthefaceoftherecord.Hence,the impugned^{order of the learnedTrial Court cannotbe sustained'}

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LT.Intheresult,thecivilrevisionpetitionisallowed.Thedocket orderdated26.|2.2023ino.S.No.1lof2024onthefileofthelearned PrincipalDistrictJud.ge,Nizamabadissetaside.Consequently,the Trial court^{is directed to afford the defendants a reasonable opportunity} tocrossexaminethewitnessesexalninedonbehalfoftheplaintiffsand alsotoadducetheevidenceonbehalfofthedefendantsinaccordance withlaw.Consideringthatthesuitpertainstotheyear2ol4,theTrial Courtshallmakeeveryendeavourtodisposeofthesuitasexpeditiously aspossible.Boththepartiesshallextendfullcooperationforearly disposal.^{Thereshallbe no order as to costs'}

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pending miscgl anegus_appli:ations,^{if any'} shatl dtand^closed: sDr_ L.vtJAyA^LAxMt SISTANT^REGISTRAR

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,,TRUE

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SECTION^OFFICER

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To, 1. The^{PrinciPalDistrict Judge; Nizamabad} 2. One^{CC to SriA- Srinivas'Advocate IOPUCI} . 3. One CC to Sri^Ch.Siddharta Sarma,^Advocate IoPUCI CD CoPies &fr,{:"

HIGH COIURT

DATED:131021202G

ORDER

CRP.No.3;86T ot 2023

ALLOWING THE CRP

il,
v

The Church of South India Trust Association v. Vijay Sahara Naveen Shailender

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The Church of South India Trust Association v. Vijay Sahara Naveen Shailender

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