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2023 Supreme(Online)(AP) 6596
2023:APHC:35708 HIGH COURT OF ANDHRA PRADESH TUESDAY ,THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND AND TWENTY THREE PRSENT THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CIVIL REVISION PETITION NO: 361 OF 2023 Between:
1. KUNALA SURYAKANTHAM W/o.Venkata Subbarayudu, Hindu, age 60 years, Housewife, R/o.Block No.9, Flat No.902, Near Lotus Akasha, Vijayawada.
...PETITIONER(S)
AND:
1. PACHIGULLA JALAJA KUMARI W/o.Late Venkata Swamy rasad, Hindu, age 57 years, Housewife, R/o.D.N0.11-49-194, Sivalaya Street, Vijayawada.
2. Chunduru Venkata Lakshmi Sudharshini, W/o.Srinivas, Hindu, aged about 38 years, Housewife, R/o.Guntur, C/o. D.NO.11-49-194, Sivalaya Street, Vijayawada
3. Panchigulla Aravind Kumar, S/o.Late Venkata Swamy Prasad, Hindu, aged about 38 years, doing job at USA, rep., by his GPA Holder and mother Pachigulla Jalaja Kumari, R/o.D.NO.11-49-194, Sivalaya Street, Vijayawada.
4. Maddali Surya Nageswari, W/o.Veera Raghava Swamy, Hindu, aged about 59 years, Housewife, R/o.D.No.5/1D, Karimulla Kannadasu Nagar, Near water tank, Chennai-600118.
5. Pachigulla Surya Prasad, S/o.late Venkata Rao, Hindu, aged about 54 years,business, R/o.D.N0.11-25-282, Main Bazar, Vijayawada-1.
6. Kanigicharla D. S.K. Murthy, S/o.late Anantha Kotaiah, Hindu, aged about
52 years, business, R/o.D.No.11-49-194, Ground floor, Sivalayam street, Vijayawada.
7. Pachigulla Lakshmi Parvathi, W/o.late Surya Prasad, Hindu, housewife,R/o. D.N0.11-25-282, Main Bazar, Vijayawada-1. 8. Kothamasu Radha Kanchi Kamakshamma, W/o.Shyam Prasad, Hindu, Housewife,R/o.D.No.27-5-16, Gopuvari street, Vijayawada-2.
9. Sriram Venkata Jhansi, W/o.Sriram Chamundeswara Sobhana Babu, Hindu, Housewife, R/o.Plot No.403, Guthikonda Varadaiah Street, D.No.59/A-21/3-2/7B, Donbosco School Road, Vijayanagar Colony, Vijayawada-7.
...RESPONDENTS Counsel for the Petitioner(s): M RADHAKRISHNA Counsel for the Respondents:
The Court made the following: ORDER
2023:APHC:35708 HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CIVIL REVISION PETITION No.361 of 2023 Between:
Kunala Suryakantham, W/o Venkata Subbarayudu, Hindu, age 60 years, Housewife, R/o Block No.9, Flat No.902, near Lotus Akasha, Vijayawada.
… Petitioner.
Versus Pachigulla Jalaja Kumari, W/o late Venkata Swamy Prasad, Hindu, age 57 years, R/o D.No.11-49-194, Sivalayam Street, Vijayawada and eight others. … Respondents.
Counsel for the petitioner : Sri M.Radhakrishna Counsel for respondents 8 and 9 : Sri K.Sarva Bhouma Rao
ORDER
Plaintiff filed the above revision against the order dated
02.12.2022 in I.A.No.225 of 2022 in O.S.No.52 of 2014 on the file of V Additional District Judge, Vijayawada.
2. Plaintiff filed suit O.S.No.52 of 2014 seeking partition of schedule properties. Plaintiff filed affidavit in lieu of chief examination and an advocate commissioner was appointed to record the cross examination of witness. P.W.1 was cross examined by the counsel for defendants 8 and 9 on Page 2 of 12 2023:APHC:35708
24.09.2022. After cross examination of P.W.1, a memo was filed by the counsel for defendants 8 and 9 on 26.09.2022 to mark the partition deed dated 12.10.1992 as Ex.A-4. The Court below marked the same as Ex.A-4 (Ex.AX-4) subject to objection.
3. Plaintiff filed I.A.No.225 of 2022 under Order XIII Rules 3 & 4 and Section 151 of CPC to demark the document by rejecting the document marked as Ex.A-4 (Ex.AX-4).
4. In the affidavit filed in support of the petition, it was contended that during the cross examination, counsel for defendants 8 and 9 confronted document showing only signature by posing a question that whether A schedule property is sold by her father or not and she answered ‘Yes’. Taking advantage of the answer, the counsel for defendants got the document marked in the absence of her senior counsel. The said document is Xerox copy of unregistered partition deed said to have been executed between father and brothers. The document requires stamp duty and registration and thus, prayed to demark Ex.A-4 (Ex.AX-4).
Page 3 of 12 2023:APHC:35708
5. Counter was filed by respondents 8 and 9 opposing the application.
6. Trial Court by order dated 02.12.2022 dismissed the application. Aggrieved by the same, the present revision is filed.
7. Heard Sri M.Radhakrishna, learned counsel for the petitioner and Sri K.Sarva Bhouma Rao, learned counsel for respondents 8 and 9.
8. Notice was served on other respondents and filed proof of service, vide USR Nos.28981 and 41938 of 2023. However, none appeared on their behalf.
9. Learned counsel for petitioner would submit that Ex.A-4 (Ex.AX-4) partition deed dated 12.10.1992 could not have been marked since the document is unregistered and unstamped and also Xerox copy. He would also submit that document was marked when the witness is out of witness box and in the absence of counsel for witness. He would submit that the document Ex.A-4 (Ex.AX-4) was marked basing on Page 4 of 12 2023:APHC:35708 the memo filed by counsel for defendants 8 and 9 and the same is impermissible and against the procedure.
10. Learned counsel for respondents 8 and 9, on the other hand, would submit that document dated 12.10.1992 was confronted to witness during cross examination. A schedule property in document dated 12.10.1992 was sold by father of plaintiff and hence a memo was filed immediately to mark the document. Court below marked the Ex.A-4 (Ex.AX-4). He would also submit that since the document is marked, it cannot be demarked or de-exhibited.
11. Now the point for consideration is:
Whether the marking of Ex.A-4 (Ex.AX-4) is legally permissible?
12. Suit OS.No.52 of 2014 was filed seeking partition. Plaintiff, as P.W.1 was cross examined on 24.09.2022. After cross examination of P.W.1, a memo was filed on behalf of defendants 8 and 9 by their counsel and in the said memo, it was mentioned that P.W.1 admitted the document dated 12.10.1992 and hence prayed to mark the same as exhibit. The same was marked as Ex.A-4 (Ex.AX-4) subject to Page 5 of 12 2023:APHC:35708 objection. The Court below also endorsed that P.W.1 is not a party to the document and she is not in possession of the same.
13. Whenever the document is marked, the Courts should follow the procedure contemplated under Order XIII Rule 4 of CPC. Case on hand, certified copy filed along with revision does not indicate the date on which the document was marked. Even the endorsement does not contain the signature of Presiding Officer and also seal of the Court.
14. P.W.1 was cross exami
