DOCUMENT PETITION, REOPEN PETITION, RECALL PETITION - when DW.2 clearly referred to the fact that both the attestors to Ex.B1 are no more, in his deposition, it is unnecessary either to reopen the suit, to receive the documents sought to be produced by the 1 st respondent or to recall DW.1 for the purpose of marking them.
‘whether the petitions filed by the respondents could have been ordered by the learned trial Judge and permitting recall of DW.1 for the purpose ofmarking the documents sought to be produced through him, is
proper?’t
he trial Court could not have come to the conclusion observing that the General Power of Attorney of the 1st respondent could not have known in whose presence his maternal grand father executed Will under Ex.B1.
When DW.1 entered witness box aware of the nature of the case expected to depose and meet the challenge offered by the other side, the reason assigned by the learned trial Judge is not proper and nor can be supported.
Merely because the petitioner would have an opportunity to cross examine DW.1, when once these documents are produced and exhibited, it cannot be stated that whatever right or advantage the petitioner had secured on account of nature of evidence let in by the respondents could be allowed to be watered down on such reason assigned by learned trial Judge. Thus, while holding that the respondents are at liberty to rely on the evidence on record in proof of the fact that both the attestors of Ex.B1 are no more, it is unnecessary either to reopen the suit, to receive the documents sought to be produced by the 1 st respondent or to recall DW.1 for the purpose of marking them. Thus, finding no justification in the order of the trial Court, the same has to be set aside.
AP HIGH COURT
| CRP/944/2020 | Achanta Narayana Murthy |
THE HON’BLE SRI JUSTICE M.VENKATA RAMANA
CIVIL REVISION PETITION Nos. 944, 945 and 946 of 2020
COMMON ORDER:
All these three civil revision petitions are filed against the
orders in I.A.Nos.897 of 2019, 898 of 2019 and 896 of 2019 in
O.S.No.8 of 2014 on the file of the Court of learned Principal
Junior Civil Judge, Peddapuram.
2. The above petitions were filed in the trial Court, to
reopen the suit, to recall DW.1 and to receive death certificates
relating to alleged attestors to Ex.B1-Will, respectively. The
plaintiff is the petitioner. The defendants are the respondents.
3. The petitioner filed the suit for permanent injunction
restraining the respondents from interfering with his peaceful
possession and enjoyment of the plaint schedule land. It is to an
extent of Ac.3.64 cents in Sy.No.27/6 at China Brahmadevam
Village of East Godavari District.
4. The 1st respondent filed a written statement, raising a
counter-claim opposing the suit claim.
5. The suit is at the stage of arguments and both parties have
already let in evidence in respect of the issues involved and
which, they are required to prove.
6. At this stage, all the above three petitions were filed in
the trial Court by the respondents. The reason stated by the
General Power of Attorney of the 1st respondent for this purpose
in his affidavit was that he was advised by their learned counsel
to file these applications in order to produce the death
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certificates of alleged attestors to Ex.B1 namely of Sri Vetkuri
Somaraju and Achanta Madhava Rao. To prove these documents,
according to the 1st respondent, she also required that he be
recalled. For such purpose, she requested that the proceedings
in the suit be reopened.
7. The petitioner opposed these three petitions, specifically,
denying the reasons so set out. While referring to the
proceedings in the suit, the petitioner specifically contended
that DW.1 did not speak about the fact as to the presence of
alleged attestors to Ex.B1-Will when it was allegedly executed.
He further contended that filing these petitions at the stage of
arguments was only an attempt to cover up the laches and
lacunae in the evidence of the respondents. Thus, seriously
opposing these petitions, he resisted their claim.
8. Heard Sri S.Subba Reddy, learned counsel for the
petitioner and Sri N.Siva Reddy, learned counsel for the 1st
respondent. None represented the 2nd respondent.
9. Now the point for determination is, ‘whether the petitions
filed by the respondents could have been ordered by the learned
trial Judge and permitting recall of DW.1 for the purpose of
marking the documents sought to be produced through him, is
proper?’
10. The parties are closely related. The dispute is with
reference to an immovable property. Having regard to the
pleadings set up by both the parties, it is quite manifest that
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they were aware of the nature of evidence to be let in in the
suit.
11. When the respondents relied on Ex.B1-Will at the trial, it is
their duty to prove this fact. There are averments clearly setting
out this Will dated 28.09.1976 in the written statement of the 1st
respondent. There is also reference to registered partition deeds
dated 22.03.2006 and also a partition dated 31.07.1976 in the
written statement. Details of these disputed facts having regard
to the scope of these three revision petitions are unnecessary to
consider. A bare reference to these documents is made only to
point out the seriousness of the nature of the dispute and the
nature of evidence expected to be let in by the parties at the
trial in order to discharge the relative burden placed on them in
this respect.
12. With reference to reception of General Power of Attorney
by the 1st respondent in favour of her son namely DW.1-Sri Y.Ram
Babu, it is not in dispute that it was already produced in the suit
in I.A.No.573 of 2019 and permission was granted to DW.1 to
represent his mother as her General Power of Attorney, in the
suit by the order of the trial Court dated 13.09.2019. In fact as
seen from the content of the petition in I.A.No.896 of 2019, this
original General Power of Attorney in favour of DW.1, though was
initially described in the petition it was later scored out. This
fact is specifically pointed out by Sri S.Subba Reddy, learned
counsel for the petitioner. Scoring out this document was for an
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obvious reason referred to above, since it was already produced
in the matter.
13. In respect of marking the death certificates of the alleged
attestors to Ex.B1, in the course of hearing, Sri S.Subba Reddy,
learned counsel for the petitioner brought to the notice of this
Court that DW.2 clearly referred to the fact that both the
attestors to Ex.B1 are no more, in his deposition.
14. Sri N.Siva Reddy, learned counsel for the 1st respondent
confirmed this fact, while further stating that this fact of death
of both the attestors, was not disputed at the trial specifically
questioning DW.2 in this respect.
15. In the above circumstances, these facts and circumstances
can well be taken into consideration by the trial Court in
considering the respective claims of the parties. In the presence
of the nature of the reason assigned on behalf of the 1st
respondent to produce these two death certificates, as rightly
contended for the petitioner, the trial Court could not have
come to the conclusion observing that the General Power of
Attorney of the 1st respondent could not have known in whose
presence his maternal grand father executed Will under Ex.B1.
When DW.1 entered witness box aware of the nature of the case
expected to depose and meet the challenge offered by the other
side, the reason assigned by the learned trial Judge is not proper
and nor can be supported. Merely because the petitioner would
have an opportunity to cross examine DW.1, when once these
documents are produced and exhibited, it cannot be stated that
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whatever right or advantage the petitioner had secured on
account of nature of evidence let in by the respondents could be
allowed to be watered down on such reason assigned by learned
trial Judge.
16. Thus, while holding that the respondents are at liberty to
rely on the evidence on record in proof of the fact that both the
attestors of Ex.B1 are no more, it is unnecessary either to reopen
the suit, to receive the documents sought to be produced by the
1
st respondent or to recall DW.1 for the purpose of marking
them. Thus, finding no justification in the order of the trial
Court, the same has to be set aside.
17. In the result, all the three Civil Revision Petitions are
allowed setting aside the common order of the Court of learned
Principal Junior Civil Judge, Peddapuram in I.A.Nos.896, 897 and
898 of 2019 in O.S.No.8 of 2014, dated 12.02.2020. The
respondents are at liberty to rely on evidence on record to
canvass their case that the attestors to Ex.B1 are no more. No
costs.
18. Pending miscellaneous petitions if any, shall stand closed.
____________________
M.VENKATA RAMANA, J
Date: 14.07.2020
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THE HON’BLE SRI JUSTICE M.VENKATA RAMANA
CIVIL REVISION PETITION Nos. 944, 945 and 946 of 2020
DATE: 14.07.2020
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