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2016 Supreme(AP) 306
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Challa Kodanda Ram, J.
Sanagala Srinivasulu - Petitioner
Vs.
Ponnapoola Seetharamaiah - Respondent
Civil Revision Petition No. 2691 of 2016
Decided On : 29-07-2016
For the Petitioner: Sri. M. Ravindra
For the Respondent: Sri. V. Siva Prasad Reddy
Headnote:
Civil Law – Civil Suit – Civil Produce Code, 1908 – Section 151 – Order 18 – Rule 17 – Constitution of India, 1950 – Article 227 – Suit for specific performance of agreement of sale – Court below, after considering the respective submissions, and more particularly, considering that the case is at the stage of arguments, had dismissed the I.A – petitioner submits that along with the reopening petition, the petitioner also filed petitions, namely, one for seeking recall of DW.1, enabling him to further cross-examine DW.1, another petition seeking to sent the signatures of the respondent on Ex.A.9 for comparison with the admitted signatures of the respondent on Exs.A.7 and A.8 and other available signatures, for opinion of Handwriting Expert and also another petition to recall PW.1, enabling him to mark the documents mentioned in the list of documents. As the reopening application has not yet been allowed, the other petitions have not yet been numbered – Held, a perusal of reasons stated in affidavit, there is no manner of doubt that the reopening is sought only on account of the fact that the respondent had disputed the delivery of possession, and disputed signature on Ex.A.9 and also certain payments, which are alleged to have been made by the petitioner/plaintiff. These are all matters, which the petitioner/plaintiff are required to establish in the suit at earliest point of time. The denials with respect to the payments or with respect to the execution of Ex.A.9 or possession, not being delivered, are all defences which are taken by respondent in the written statement was filed on 02.11.2010 itself. In other words, the petitioner/plaintiff was aware or ought to have been aware with regard to nature of the evidence, which is required to be brought on record to succeed in the suit – It is only after closure of the evidence on behalf of defendan, plaintiff had realised that certain evidence further have improve his case – That hardly can be a reason for the petitioner seeking to reopen the suit, especially at stage of arguments – So far as the judgments cited either by learned counsel for the petitioner or by the learned counsel for the respondent, there is no dispute about ratio decidendi stated therein that it is at the discretion of the court depending on the facts of each case and court has power under Section 151 CPC reopen suit or to recall a witness under Order 18 Rule 17 CPC. In the present case, the court below had come to conclusion that petitioner has not assigned any reasons for his failure to produce the documents before the court, while he was adducing evidence on his behalf and petitioner has not come to the court with clean hands with a request to reopen the suit at this belated stage to allow him to adduce further evidence and there are no such circumstances warranting to allow the reopening petition. For the reasons and analysis stated above, this court does not find any justification in interfering with the orders passed by the court below – Petition is dismissed. (Paras 8, 9 and 10)
CHALLA KODANDA RAM, J.
This civil revision petition is filed aggrieved by the order dated 30.04.2016 in IA No. 356 of 2015 in OS No. 159 of 2010 passed by the learned V Additional District Judge, Nellore, wherein the court below dismissed the above petition.
2. The petitioner/plaintiff filed suit in OS No. 159 of 2010 against the respondent/ defendant, for specific performance of agreement of sale dated 07.03.2005 In the suit, the defendant filed his written statement on 02.11.2010 PW.1 filed affidavit in chief examination on 07.09.2011 and his evidence was closed on 27.08.2015 The evidence on behalf of the defendant was also closed on 30.11.2015 The present I.A was filed on 14.12.2015 seeking to reopen the suit. The reasons stated in the affidavit filed along with the reopening petition are that as the respondent disputed the signature in Ex.A.9 and also delivery of possession of the schedule property under Ex.A.10, the petitioner desires to prove that the property is in his possession and enjoyment and also to prove the signature in Ex.A.9, he has been advised to file the petition to reopen the suit, enabling him to adduce further evidence on his behalf. The court below, after considering the respective submissions, and more particularly, considering that the case is at the stage of arguments, had dismissed the I.A
3. Learned counsel appearing for the petitioner submits that along with the reopening petition, the petitioner also filed petitions, namely, one for seeking recall of DW.1, enabling him to further cross-examine DW.1, another petition seeking to sent the signatures of the respondent on Ex.A.9 for comparison with the admitted signatures of the respondent on Exs.A.7 and A.8 and other available signatures, for opinion of Handwriting Expert and also another petition to recall PW.1, enabling him to mark the documents mentioned in the list of documents. As the reopening application has not yet been allowed, the other petitions have not yet been numbered.
4. Learned counsel for the petitioner very diligently would advance persuasive arguments to say that the Advocate, who was appearing on behalf of the petitioner/plaintiff had passed away and thereafter, another Advocate was engaged, who had not completed the evidence. At this stage, when the matter was about to take up for arguments, the petitioner, on going through the record, found that the counsel who has appeared earlier, notwithstanding the petitioner had handed over the documents, which were listed in seven in number along with the application, in un-numbered I.A, were not placed on record and thus, it has become necessary and when he confronted with the Advocate, he had chosen to give up his vakalat. The petitioner, having no other alternative, by engaging another Advocate, had filed the present I.A
5. Learned counsel for the petitioner by placing reliance on the judgment of the Apex court in K.K Velusamy v. N. Palanisamy, would submit that at any stage, even at the stage of arguments, it is always open for the court to exercise jurisdiction under Section 151 or under Order 18 Rule 17 CPC, to do justice.
6. On the other hand, learned counsel for the respondent opposes interference with the order of the court below. He would submit that it is impermissible for the court to fill-up lacunas in evidence. He also would point out that the reasons, which are being stated before this court, are not stated before the court below and it is impermissible for this court to take into consideration of any of the matters, which were not there before the court below, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. Learned counsel for the respondent would also rely on the judgments of this court in Shaik Gousiya Begum v. Shaik Hussan, Karnapu Satyanarayana v. Chappa Venkata Rao and Yousuf Saleh @ Raisa v. Aisha Siddique, in support of his contention.
7. Having given anxious consideration for the respective submissions, having perused the
