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2018 Supreme(AP) 428
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. SIVA SANKARA RAO, J.
Zulfikar Hussian - Appellant
Versus
Zainab Begum and Ors. - Respondent
C.R.P. No. 1886 of 2017
Decided On : 31-01-2018
Advocate Appeared:
For the Appellant : V.S.R. Anjaneyulu
Headnote:
Civil Law – Civil Suit – Constitution of India, 1950 – Article 227 – Waqf Act – Section 83(9) – Suit for adducing further evidence – Tribunal has allowed the petition by reopening the suit for adducing further evidence on behalf of the plaintiffs subject to payment of costs of Rs. 1,000/- to respondent Nos. 15 to 19/defendant Nos. 15 to 19 – Challenging said order in I.A. CRP. No. 6452 of 2017 was filed subsequently – Against the order in I.A. in O.S. where the Tribunal has allowed the petition and the documents now produced by the plaintiffs shall be received subject to proof and relevancy and subject to payment of costs of Rs. 1,000/- to respondent Nos. 15 to 19/defendant Nos. 15 to 19 on or before 30.01.2017 – Challenging the said order in I.A, CRP. was filed subsequently under Section 83(9) of Wakf Act, for the selfsame reason supra – Held, It was observed that power of the Court to recall and examine any witness is to be exercised sparingly and not as a general rule merely on the ground of asking for it will not cause prejudice to other parties nor the power to be exercised to fill up the lacunas of the witness of their side or of the other side to cover up therefrom later though it is the discretion of Court thereby to exercise sparingly and judiciously and not as a matter of course – Same is reiterated in Ram Rati v. Mange Ram (D) through LRs (2016) 11 SCC 296 of any attempt to fill up omissions or lacunas in the earlier evidence already let in either for further elaboration on left out points or otherwise cannot be exercised for the orders to be passed is to sub serve the ends of justice for reopening the evidence either for further examination of any witness or recall or reexamine of any witness of already examined for such a judicial discretion to be exercised sparingly and not as a matter of course and the earlier expressions in this regard in Vadiraj Naggappa Vernekar supra, K.K. Veluswamy v. N. Palanisamy (2011) 11 SCC 275 : 2011 (5) ALT 12.1 (DN SC) and Bagai Construction v. Gupta Building Material Store (2013) 14 SCC 1 : 2013 (3) ALT 35.3 (DN SC) – Thus any mere observation of no prejudice is caused to the other side is not even enough in the absence of parameters required to be fulfilled to reopen the evidence or to recall of any witness or examination of further witness likewise without reasons in the affidavit for the belated filing and earlier non-filing and without sufficient cause to receive documents thereby impugned order of lower Court in reopening and recall of witness is unsustainable, but for only in relation to the 4 documents supra for which it is not in dispute by saying fabrication, forgery or created and that too those are certified copies of sale deeds or decree of Court as the case may be – Petition is allowed. (Paras 26 and 27)
B. SIVA SANKARA RAO, J.
1. The revision petitioner is defendant No. 18 in O.S. No. 57 of 2000 in all the 4 revisions by name Zulfikar Hussain. The revision respondents are the plaintiffs and other defendants. CRP. No. 1886 of 2017 was filed under Article 227 of Constitution of India against the order dated 25.01.2017 in I.A. No. 391 of 2016 in O.S. No. 57 of 2000, where the Tribunal has allowed the petition by reopening the suit for adducing further evidence on behalf of the plaintiffs subject to payment of costs of Rs. 1,000/- to respondent Nos. 15 to 19/defendant Nos. 15 to 19 on or before 30.01.2017. Challenging the said order in I.A. No. 391 of 2016, CRP. No. 6452 of 2017 was filed subsequently under Section 83(9) of the Wakf Act, from one of the arguments raised in CRP. No. 1886 of 2017 of not maintainable invoking Article 227, but for to file under Section 83 of the Wakf Act (for short 'the Act').
2. CRP. No. 2720 of 2017 was filed under Article 227 of Constitution of India against the order dated 25.01.2017 in I.A. No. 390 of 2016 in O.S. No. 57 of 2000, where the Tribunal has allowed the petition and the documents now produced by the plaintiffs shall be received subject to proof and relevancy and subject to payment of costs of Rs. 1,000/- to respondent Nos. 15 to 19/defendant Nos. 15 to 19 on or before 30.01.2017. Challenging the said order in I.A. No. 390 of 2016, CRP. No. 6451 of 2017 was filed subsequently under Section 83(9) of the Wakf Act, for the selfsame reason supra.
3. Pending suit from sole plaintiff died on 18.02.2004, the plaintiff Nos. 2 to 5 were brought on record as her legal heirs and they are contesting the suit. While so, the 2nd plaintiff also died in course of time and the other plaintiffs are on record. The affidavit averments of petitioner No. 4/plaintiff No. 4 also on behalf of other petitioners/plaintiffs in both I.A. Nos. 390 & 391 of 2016 are that the suit O.S. No. 57 of 2000 was originally filed by their mother as sole plaintiff by name Zainab Begum against the 1st respondent Wakf Board and others for the relief of declaration that the Andhra Pradesh Gazette notification dated 22.01.1970 notifying the plaint schedule property as Wakf property as illegal and not binding on her and further to declare that she is the absolute owner of the plaint schedule property and for consequential relief of recovery of possession by evicting the defendant Nos. 3 to 5 from the plaint schedule property. The plaint schedule property, which is part of the total extent of the land admeasuring about 36, 348 3/4 square yards at Inugudurupet, Machilipatnam, which was purchased by the maternal grandfather of their mother under Ex. A1 registered sale deed dated 26.10.1922, that during his lifetime the suit property was in his possession and after his demise in the year 1926, the suit property devolved upon his two children namely Ahamad Ali Khan Saheb and Imadi Begum Saheba, that Ahamad Ali Khan Saheb died in the year 1956 as unmarried and hence, the suit property was devolved upon the mother of the 1st plaintiff, who enjoyed the plaint schedule property during her lifetime and after her death it was devolved upon the 1st plaintiff, being her only daughter. It is also averred that after purchase of the suit property by 1st plaintiff's maternal grandfather, he constructed a building with municipal door No. 26/43 and it has appurtenant land of an extent of 7224 square yards and during the lifetime of Imadi Begum (1st plaintiffs mother), the said building with appurtenant land was leased out to Government Training School for the purpose of office and play ground and the suit property which is admeasuring about 3427 square yards is part and parcel of the said appurtenant land and later said Training school was vacated and possession was handed over to the 1st plaintiff in the year 1974 and she was paying municipal tax for the building and also to the vacant land. In the year 1977, the deceased 1st plaintiff also let
