Smt.S.Krishnamma v. Smt.K.S.Bhagya Lakshmi

Order

These four civil revision petitions arise out of the common order dated 14-10-2008 in I.A.Nos.1003, 1004, 1005 & 1006 of 2008 in O.S.No.77 of 2006, on the file of the Principal Senior Civil Judge, Tirupati, wherein the said applications fled by the petitioner herein under Section 151 CPC to re-open the case for further evidence of the

plaintiff and to re-call P.W.1 for marking certain documents and to receive certain documents and issue summons to the witnesses, were dismissed.

2. Heard both sides. Perused the record.

3. As all the four civil revision petitions arise out of the common order, they are heard together and are being disposed of by this common order.

4. The petitioner in all the civil revision petitions filed the suit for recovery of money based on promissory notes 20-04-2003 25-04-2003. The respondent/defendant filed written statement contending that that plaintiff obtained signatures on blank promissory notes in 2005 as a security for the mortgage debt taken on 20-01-2005 and subsequently the suit by fabricating the suit promissory notes. During trial, P.Ws.1 and 2 were examined on behalf of the plaintiff and D.W.1 was examined on behalf of the defendant. At that stage, the defendant filed I.A.No.739 of 2007 with a request to send the suit promissory notes to Government Printing Press, Nashik to examine the date of printing of stamps used on the suit promissory notes. After the report was received, the defendant filed an application to re-open the said evidence and to appoint an advocate-Commissioner to examine the expert. The advocate-Commissioner recorded the evidence of the expert and filed his report and the matter was posted for arguments. At that stage, the plaintiff filed the present batch of applications.

5. The plaintiff seeks re-opening of the evidence for the purpose of re-calling himself and to mark certain documents viz., legal notices exchanged between the parties and alleged letter of admission dated 20-01-2005 said to have been executed by the defendant wherein a reference is made to the suit pronotes. It was contended by the defendant that there was no pleading regarding the said letter of admission and, therefore, the evidence in the absence of pleading is not admissible. The learned Senior Civil Judge upheld the said contention and dismissed the applications, observing that they are filed only to drag on the proceedings and also on the ground that the petitioner cannot seek summons to the witnesses whose names are not mentioned in the list of witnesses.

6. The learned counsel for the petitioner/plaintiff would rely upon a decision in N.BALARAJU AND ANR V. G.VIDHYADHAR[1], wherein this Court held that filing of list of witnesses is not mandatory and summons can be issued to persons to be examined as witness even in cases where no list of witnesses is filed, provided the Court is satisfied with the reasons given by the party seeking such relief. The petitioner/plaintiff who seeks to examine certain witnesses who are not named in the list of witnesses has to satisfy the Court about the necessity to examine the said witnesses and also the relevance of their evidence. The petitioner seeks to examine one J.Viswanath, document writer and Muneenindrudu, who is also a document writer. In the affidavit filed in support of the application in I.A.No.1006 of 2008 filed under Order XVI Rules 1, 2 & 3 CPC, the petitioner has stated that the suit pronotes, mortgage transactions and letter of acceptance took place at Sub-Registrar’s Office and, therefore, it is essential to examine the scribe of the mortgage deed and the letter of acceptance dated 20-01- 2005 to reveal the money transactions between the plaintiff and defendant. Simply because the names of the said two witnesses are not mentioned in the list of witnesses, the petitioner/plaintiff cannot be denied the opportunity to adduce evidence to substantiate her plea that the two transactions viz., execution of the pronotes and the mortgage deed are interrelated and she signed the blank pronotes only by way of security for the mortgage debt. Dismissal of the said application by the trial Court on the ground that the names of the witnesses are not mentioned in the list of witnesses would not sub-serve the cause of justice. The impugned order in I.A.No.1006 of 2008, dismissing the said application is, therefore, held unsustainable and the same is accordingly set aside.

7. I.A.No.1005 of 2008 is filed under Order VII Rule 14 CPC for receiving certain documents viz., legal notice issued by the defendant to the plaintiff on 13-03-2006 and office copy of the reply notice issued by the plaintiff to the defendant on 18-03-2006 and letter of admission said to have been executed by the defendant on 20-01-2005. The said application was dismissed by the trial Court on the ground that no explanation is given by the plaintiff for not filing those documents earlier and no pleading raised regarding the alleged letter of admission. It is to be noted that the plaintiff has filed the suit based on the promissory notes and it was the defendant who raised the plea that she signed blank promissory notes by way of security to the mortgage debt. To disprove the said contention, the plaintiff seeks to produce the document dated 20-01-2005 alleged letter of admission which is said to contain a reference to the transaction under the suit pronotes. Admittedly, D.W.1 was confronted with the said document during the cross- examination and the same was denied by the defendant. The plaintiff is, therefore, entitled to mark the said document as an exhibit in evidence by way of rebuttal. The fact that there is no specific pleading in the plaint regarding the said document does not disentitle the plaintiff to bring the said document on record, especially when the same is put to the defendant in the cross- examination and it was denied by the defendant. The probative value of the said document and to what extent the said document supports the plaintiff’s contention, is altogether a different matter to be considered by the trial Court along with the other evidence on record. The other two documents are only notices exchanged between the parties and there cannot be any tenable objection for marking the same in evidence.

8. The learned counsel for the respondent would rely on a decision of this Court in SUNDER v. MOHD.ISMAIL AND ANOTHER[2] wherein a Division Bench held as under: “The Court while dealing with an application filed under Order XVI Rule 6 of the Code of Civil Procedure is required to satisfy itself that the application was a bona fide one and not a vexatious one granting of which would result in abuse of process of the Court. The Court in exercise of its inherent jurisdiction is entitled to take all the relevant facts and circumstances and if it is satisfied that the application has been filed only to protract the proceedings and the ordering of which may result in serious injustice, is entitled to dismiss the application. A plain reading of Order XVI Rule 6 does not suggest that the application is required to be ordered automatically without considering the bona fides of the application”. The principles laid down in the above decision cannot be disputed. However, in the facts and circumstances of the present case and especially when D.W.1 was confronted with the document dated 20-01-2005 and he denied the same, the plaintiff’s effort to place the document on record through his own evidence, cannot be termed as lacking in bona fides.

9. It is to be noted that the procedure is only a means intended to sub-serve the goal of arriving at the truth of the matter and for that purpose, both parties should have an opportunity to place on record the entire evidence relevant for proper adjudication of the dispute. If the parties are denied opportunity to place on record the entire evidence available with them, it would only hamper the cause of justice and the Court would be deprived of the benefit of such evidence for arriving at a just decision in the case. Of course, under the guise of placing the entire evidence on record, parties cannot be permitted to protract the litigation or take the proceedings for a ride. The Court has, therefore, to apply its mind in exercising discretionary power of permitting the parties to adduce further evidence by re-opening the matter depending upon the facts and circumstances of a given case without giving undue importance to procedural technicalities for the sake of rendering substantial justice and at the same time without allowing the parties to protract the litigation by taking the judicial process for a ride. In the present case, it is considered that the ends of justice would be better served by giving an opportunity to the plaintiff to adduce further evidence, oral and documentary. No prejudice would be caused to the defendant, as she would have every right to cross- examine the proposed witnesses and also adduce rebuttal evidence, if any. For the said purpose, re-opening of the evidence on the plaintiff’s side and re-calling of P.W.1 for marking the documents can be permitted and accordingly impugned orders, dismissing the said applications I.A.Nos.1003 and 1004 of 2008 are set aside.

10. However, in order to compensate the delay that occurred on account of filing the present applications at the stage of arguments, the petitioner/plaintiff is directed to pay costs of Rs.1,000/- to other side before the evidence can be re-opened, within a period of two weeks from the date of receipt of a copy of this order, failing which the impugned common order passed by the trial Court, dismissing the applications, would stand unchanged.

11. In the circumstances, it is held that the impugned common order, dismissing applications I.A.Nos.1003, 1004, 1005 & 1006 of 2008 in O.S.No.77 of 2006 are held unsustainable and they are accordingly set aside, subject to payment of costs as stated above.

12. In the result, the civil revision petitions are allowed, as stated above. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 15th April, 2011 Lrkm [1] 2004(4) ALD 490 [2] 2004(3) ALT 661 (D.B)