2007 (3) ALD 496
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
C.Y. SOMAYAJULU, J.
Economic Transport Organisation, Hyderabad - Appellant
versus
New India Assurance Co., Ltd., Anantapur District and another - Respondent
CRP No.2572 of 2006
Decided on 15th September, 2006
Advocate appeared
K.S.R. Murthy, Counsel for the Petitioner; Kola Subba Eao, Counsel for the Respondent No.1.
Civil Procedure Code, 1908 – Rule, 2, 13, 14 – Section 151 – Amendment Act, 1999 – Section, 8, 17, 32 – Suit for Recovery of Money - Respondents 1 and 2 filed a suit against revision petitioner for recovery of money. During the course of a evidence respondents filed a petition purportedly under Order 7 Rule 14 read c with Section 151 C.P.C. seeking leave of Court to receive a true copy of letter of subrogation executed by 2nd plaintiff of 1st plaintiff Rejecting the objection of revision petitioner trial Court allowed that petition by order under revision it Hence this revision – Contention of learned Counsel for the revision petitioner is that trial Court without keeping that an insurer cannot without obtaining assignment from insured file a suit against 3rd party for recovery of re money, erroneously allowed the petition when existence of the document sought to be received was not even mentioned during the course of cross-examination of the witnesses of the revision petitioner – It is his contention that respondents in order to fill up lacuna in their case created a document of subrogation and want to introduce it and are falsely claiming that they had earlier filed a petition to receive original of document sought to be filed into Court and as it is not traced from Court record they are filing petition to receive a copy of document and contended that trial Court even without making an attempt to find out if such a petition was filed into Court and if that petition is not traced, was in error in allowing petition – It is his contention that in matter of admitting secondary evidence some guidelines are laid down in Shiva Shankar and another v. Praveen Kumar and another where it is held that granting of permission of file Xerox copy does not relieve party producing it from obligation to prove document in other respects – Held, Suit is filed by consignor and his insurer against common carrier seeking damages for the damages caused to the consigned goods. So it cannot be said that suit by insurer only against carrier indemnifier no doubt cannot sue third party in his own name unless there is an assignment. Question whether a suit filed by indemnifier and indemnified against third party that caused risk is maintainable or not has to be decided by Court at the time of disposal of the suit but not at this stage – Averment in affidavit is that on letter of subrogation was filed into Court along with a petition to receive same with two other petitions – In order under revision trial Court observed that the question whether the letter of subrogation is misplaced in Court or not would be decided separately – So it is clear that Court did not give any finding on the respondents filing the original with Court – Since the document sought to be received is a copy but not original question whether loss of original document is properly explained or not has to be considered at stage when it is sought to be introduced in evidence but not at this stage at time of seeking leave to receive document – Revision is dismissed.
2. The contention of the learned Counsel for the revision petitioner is that the trial Court without keeping in view the fact that an insurer cannot without obtaining assignment from the insured file a suit against 3rd party for recovery of re the money, erroneously allowed the petition, when the existence of the document sought to be received was not even mentioned during the course of cross-examination of the witnesses of the revision petitioner. It is his contention that respondents in order to fill up the lacuna in their case created a document of subrogation and want to introduce it and are falsely claiming that they had earlier filed a petition to receive the original of the document sought to be filed into the Court and as, it is not traced from the Court record, they are filing the petition to receive a copy of the document and contended that the trial Court even without making an attempt to find out if such a petition was filed into the Court and if that petition is not traced, was in error in allowing the petition. It is his contention that in the matter of admitting secondary evidence some guidelines are laid down in Babulal Shiva Shankar and another v. Praveen Kumar Agarwal and another, 2005 (5) ALD 342 = 2005 (5) AL T 410, where it is held that granting of permission of file Xerox copy does not relieve the party producing it from the obligation to prove the document in other respects. He also relied on P. Pandit Rao (died per L.R) and others v. K. Damodar and another, 2005 (5) ALD 646 = 2005 (6) ALT 140, where it is held that a party cannot be permitted to present an altogether new version merely because his side is reopened and in cases where a new version is permitted, an opportunity has to be afforded to the other side to lead evidence with regard to the new version introduced by the other party after reopening of its evidence. It is also his contention that the document sought to be filed into the Court is not in the proper form and is different from the form of subrogation and special power of attorney, usually used by the insurance companies. It is also his contention that the special power of attorney being relied on by the petitioner has no relation to the facts of the case, because it pertains to claims for money from railway administration or authorities payable to the 2nd defendant under the aforementioned invoices or railway receipts and so that special power of attorney is irrelevant for the purpose of deciding the dispute in the case. The contention of the learned Counsel for the 1st respondent is that since the petition is only to receive a document, all the contentions raised by the Counsel for respondents are alien to the point to be decided in the petition. It is his contention that question relating to receipt of secondary evidence was considered in Chandabolu Bhaskara Rao v. Betha Saidi Reddy, 2006 (4) ALD 572, and since all the contentions raised by the other side have to be gone into at the time of final disposal of the case but not at this stage, in view of ratio in Muslim Education Society, Karimnagar v. Awaz Bin Musallam, 1993 (3) ALT 7 (NRC), since permission can be obtained at any stage, there are no grounds to interfere with the order under revision.
3. Rule 14 of Order 7 C.P.C., as it stands now was introduced by Section 17 of the ere Amendment Act, 1999 amending certain provisions in Order 7 C.P.C. Section 32 of ere Amendment Act 1999, lays down the provisions of Or
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