The High Court · 2025

Constittrtion of lndia, is tiled b1' the petitioner-defendant aggrieved by the order and decree, dated lO.O2.2O2l in I.A.No.1r37 of 2O2O in O.S.No.62 of 2Ol3 passed by the learned Principal Junior Civil Judge-cum-Judicial Magistrate of First Olass, Shadnagar, \,vas allowed-

2. Heard Sri S.Krishna Sharma, learned counsel for the petitioner and Sri Ramachandra Rao Vemugantit learned <:ounsel for the respondent. Perused the record. i I I I *I I I I I t Ii t I t I t t I I I I I I { T f I i { z * E 3* i i t t. I t i ; i NNR,J crp-'t38 2021

3. Brief facts of the case are that the respondent- plaintiff filed aforesaid suit for perpetual - injunction restraining the petitioner-defendant from inter'fering with her peaceful possession and enjoyment over the land admeasuring Ac.O1-10 guntas along with other land situated in Survey No.577, within the limits of chetanpally Revenue Village, Farooqun aga.. Mandal, MahabubnaSar District. when the suit was posted on 11.03.2020 fot reply arguments of the petitioner-defendant, at that staE€, the respondent-plaintiff Iiled two interlocutory applications, one seeking to receive the document namely, Encumbrance certificate dated lo.o3'2o2o in evidence, and the other is to reopen the suit and recall p.w.1 for marking the said document. Both applications were allowed by the learned trial court permitting petitioner- defendant to cross-examine P.W.1 with reference to the said document.

4. Aggrieved by the said the impugned order' the petitioner-defendant has filed the present Civil Revision petition contending that the learned trial court, without proper application of mind, allowed said applications despite the fact that the matter had already reached the stage of \, \ r-1 NNR,J crp_438_2021 arguments. It is stated that the learned trial Court instead of allowing the applications, ought to have rejected the same, as the ft)spondent-plaintiff failed to offer any satisfactory explan,ation for filing the Encumbrance Certificate along with a petition to recall P.W.1 at a belated stage. It is further stated that tt.e learned trial Court failed to appreciate that said applications were filed at a belated stage, solely with an intention to protract the proceedings and to keep the litigation pendin6;. The petitioner-defendant further stated that the impugn,:d order passed by the learned trial Court is contrary to the law laid down by the High Court of Madras as well as the Highr Court of Rajasthan. . 5. Having regard to the facts and circumstances of the case, the points that arouse for consideration in this revision'petition are: (1) 'vhether the respondent-plaintifT h;rs made out an\,' ground to file the rlocument i.e., Encumbranct: Certitlcate, dated 1O.03.2O20 in twidence and whether the resp<.rnclenr-plairrtiff can be permitted to recall P.W. 1 at the fag end of the srrit i.e., at the stage of the e.rguments? (2) lfhether the learned trial court lrers committed anr error in allowing applications? NNR,J crp_438_rc21 PIONTS:

6. The main grievance of the revision petitioner- defendant before this Court is that the learned trial Court allowed applications filed to receive the Encumbrance Certificate dated 10.03.2020 and to recall P.W.l to mark the said document in the evidence at a belated stage i.e., when the suit was posted for reply arguments of the respondent- defendant. He further contended that the respondent-plaintiff Iiled said document only to fill up the lacunae in her case. He further argued that receiving of said document into evidence is impermissible in law as was same was not pleaded or referred to in the pleadings.

7. [n support of his contentions, he also placed reliance on the judgments of the Hon'ble Supreme Court in Bagai Construction v. Gupta Building Material Storer; Vadiraj Naggappa Vernekar (Deadl through LRs. v. Sharadchandra Prabhakar Gogatez; Vinay Shastry &Ors. v. Dhondu Shastrya; Bachhaj Nahar v. Nilima Mandal and another+. '(ZOfg) 14 Supreme court Cases 1 '(zoOg) 4 Supreme Court Cases 410 t zooo (r)A.oP.L.J. s17 (Hc) o (ZOOS) 17 Supreme Court Cases 491 i i I i $ * i I l 1 . NNR,J crp_438 2021

8. Per contra, learned counsel for the respondent- plaint:iff submits that the said document was filed only for a limited purpose to confront the same to the P.W.l. It is further sub'mitted that the petitioner-defendant does not possess any properties and that the Encurnbrance Certificate was confronted solely to elicit relevant answers from P.W.1, so as to demonstrate that the mother of the petitioner-defendant had atready alienated the entire property and that the petitioner-defendant has no right, title, or interest in the suit schedule propert5r. Learned counsel further submits that the petitioner-defendant is a stranger to the suit property. It is also contended that the learned trial Court had already allowed the application for reopening of the evidence of P.W.1 for the purpose of receiving the said document. Therefore, rejection of the respondent-plaintiff"s case purely on technical grounds that the document was produced at a belated stage after th,= conclusion of arguments is not sustainable and cannot constitute a valid ground for dismissal.

9. It is well settled that an), evidence without pleading is of no avail, and conversely, any pleading without supporting evidence is equally of ": consequence. Every NNR,J crp_438_2021 r"'' pleading must be substantiated by proof, whether oral or documen Wr, and in the absence of such proof, the pleading remains ineffective and cannot be relied upon.

10. In the present case, it has been specifically pleaded by the respondent-plaintiff that the petitioner- defendant, having no right, title, or interest in the suit schedule property and being a stranger thereto, is interfering with her peaceful possession and enjoyment. During the course of examination, a suggestion was put to P.W.l on behalf of the respondent-plaintiff that the mother of the petitioner-defendant had already sold the entire propert5r to various parties and, consequently, had no property left that could be claimed by the petitioner-defendant. According to the respondent-plaintiff, though the subject document was neither pleaded in the affidavit nor confronted to P.W.1, it was produced only for a timited purpose, and no further evidence was required to be adduced in respect thereof, as the entire facts and evidence relating to the Encumbrance Certificate was already on record. It \ryas further contended that no prejudice would be caused to the petitioner-defendant if the said document was taken on record. I NNR,J crp_438 2O2l .11. Frrrther, the case of the petitioner-defendant is that rr:calling of a witness and reopening of the case at the fag end that too after conclusion of arguments is impermissible in law. Lr-'arned counsel placed reliance on the judgment of the Hon'b[,: Supreme Court in Bagai Construction v. Gupta Buildirrg Material Store (supra), wherein it was held that recalling of a witness under Order XVIII Rule 17 of the Code of Civit Procedure is intended only to enable the Court to clarify any doubt regarding the evidence already led by the parties and not to permit any party to adduce additional evidence. The Honble Supreme Court further held that the po\f,/er c:onferred upon the Court under Order XVIII Rule 17 of C.P.C., whether exercised suo moht or on an application by the parties, must be exercised sparingly ancl onlv in appropriate cases. A witness cannot be recalled or re- examint:d merely on the ground that no prejudice r,l'ould be caused to the other side. Only where the application is bona -fide an<l the additional evidence sought to be elicited is necessary for clarification by the Court then onlv recalling of a witness be permitted. NNR,J crp_438 2021 ( (-'r I-2. Even in Vadiraj Naaggappa's case the prejudice is not a ground for exercise of power by Court. Order )ffIII Rule 17 of C.P.C. is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. The main purpose of Order XVIII Rule 17 of C.P.C. is to enable Court to clarify any doubts that may have arisen during the course of his examination.

13. Applying the above said principle, no doubt, the witness cannot be recalled that too at fag end at the stage of the arguments. But, considering the said judgments which are cited by learned counsel for the petitioner-defendant, clearly shows that the witness cannot be recalled to fill up lacunae, but new evidence cannot be sought to be introduced which was discovered subsequentlv. L4. The Honble Supreme Court also clarified that in case where there are bona fides established and when the Court feels that the application is bona fide one and leading additionally to clarify the doubts of the Court and earlier non- production of valid and Honble Supreme Court also recalling of witness is permissible. Applying the principle to the present set of facts admittedly there.io a pleading in the affidavit that : .l 1 * i .i: 1l : ,l NNR,J crp_438_2021 the pe:itioner-defendant is totally stranger and he has no right or title over the property the same has to be taken as the mother who has sold the entire property, as such he has no right over the suit schedule property.

15. Further, as to the cross-examination of PW-l, the said asllect was already put to witness by way of suggestion and it is also placed in evidence that is by citing EncumL,rance Certificate that his mother has already sold the entire property and she is not holding any land to claim. Since the same was brought on record by way of pleading and also by way of confronting it to the witness and it appears that it is already the Encumbrance Certilicate was earlier refused though the same was not filed at the relevant point of time whi:h the petitioner is intended to bring it on record bv marking the said document only for the purpose to mark it as a part of record. The relevant evidence with regard to the said documen[ is already on record as such it cannot be used to fill up lacunae or for marking.

16. Learned counsel for the petitioner relied upon the judgment of the High Court of Andhra Pradesh in ltinaAak Shastry's case to justify the receipt of the document at the fag \ €.? NNR,J crp_438_2027 t end after arguments. However, the said judgment is clearry distinguishabre on facts. In that case, evidence was red during the trial stage, whereas in the present case, arguments have already been concruded. At such a belated stage, permitting the leading of additionat evidence is impermissible. Hence, the said judgment has no apprication to the present case. lz- on an overail consideration of the entire material placed on record, the rerevant citations, and the submissions made by both parties, this court is of the opinion that the findings of the rearned Trial court, while allowing the application, do not suffer from any error. The learned rriar court has rightly permitted the petitioner ro mark the document, having applied its judiciar mind and recalred p.w.1 only for the limited purpose of marking the document, while reserving the right of the defe,dant on that aspect. Therefore, this court does not find any ground to interflere with the order passed by the learned Judge. consequentry, the revision fails and, accordingry, the civil R'evision petition is dismissed. 18' However, it is made clear that as the suit pertains to the year 1993 and the rnatter is posted for arguments, the respondent-plaintiff is permitted to examine p.w. r only for .*.)\ i I i: i I i i 'l i: t! :i l :] . ; { +: $i !, r ' t:..1a .,, {'* $ ui: ti. *i ..:dl , l:'1;:, '1 : NNR,J crp_438 2O2t purpose for marking of Encumbrance Certificate, _limited dated l o.o3-2o20, without leading any further .r.id.r". fo, any purpose, and the petitioner-defendant is permitted to cross e:xamine p.w.1 0nly to extent of Encumbrance certificate and no other questions are permitted to put to P-wl. 'lhe cross-examination has to be concluded on the same dalr and no further time will be granted. For any reason, the trial court shall dispose of the said suit as expeditiously as possible. There shalr be no order as to costs. Misr:ellaneous petitions, if any, pending shail stand closed ,/TRUE COPY// Sd,. T.SRINIVASA REDDY ASSISTANT REGISTRAR6 SECTION OFFICER \ To

1. The Principal Junior Civil Judge-cum-Judicial Magistrate of First Class at Shadnagar.

2. One CC to {iRl. S KRTSHNA SHARMA Advocate tOpUCJ 3. one cc to {iRl. RAMACHANDAR RAo VEMUGANT!Advocate topucl 4. Two CD Copies ba % a I HIGH COUF]T DATED: 18/1212025 ORDER CRP.No.438 <tt 2021 DISMISSING THE CIVIL REVTSION PETITION ctJ ( * 'i Fl{: S 2 3 flAfl 2C26 t t,' t