G.Srinivas v. Smt.Enugula Buchamma

Order

These civil revision petitions are filed against common order dated

05.05.2012 in I.A.Nos.422, 425, 424 and 423 of 20012 respectively in O.S.No.101 of 2009 on the file of the Court of II Additional Junior Civil Judge, Warangal. The petitioners herein are also the petitioners in the I.As and

plaintiffs in the suit whereas the respondents herein are also the respondents in the I.As and defendants in the suit. For convenience sake, I refer the parties as they are arrayed in the suit. The suit was filed for permanent injunction and other reliefs in respect of the suit schedule property. The I.As were filed by the plaintiffs seeking to reopen the suit for adducing evidence on their behalf, to file certain documents to recall and examine P.W.1 with reference to those documents and to summon the Joint Sub-Registrar, Warangal to give evidence in respect of a registered deed vide document No.2891 of 1970. The case of the plaintiffs is that they purchased the suit schedule property from one M.Shakunthala and Shailaja, who were the widow and daughter of late Mallipeddi Subba Rao, whereas they got the property after the death of Subba Rao. On the other hand, it is the case of the defendants that M.Shakunthala and the L.Rs of Subba Rao never sold the suit schedule property to the plaintiffs, that they got the property by virtue of Ex.B3 agreement of sale executed in their favour by Subba Rao which the plaintiffs deny claiming that it is a forged and fabricated document, and that they are the owners and possessors of the suit schedule property. The I.As were filed for marking a Will dated 04.12.1995, three inland letters, acknowledgment card, post card letter, two inland letters and RTI information for the purpose of establishing as to whether the suit agreement of sale dated 14.6.1983 claimed by the defendants to be executed by Mallepalli Subba Rao was in fact executed by him. The I.As were dismissed on the ground that no pleading was made with regards to the said documents. On the other hand no rejoinder was filed by the plaintiffs in that context. Further the evidence of the plaintiffs was closed long back whereas the evidence of the defendants 1 and 2 was also closed. A question was put to the learned counsel for the plaintiffs as to the basis to claim that the Will and inland letters were executed or written by the said person Mallepalli Subba Rao who in fact is no more. According to him it could be done by way of examining an attestor of the document or those who got knowledge about the writings or signature of the deceased testator without proving the other contents of documents. He has relied upon a decision of High Court of Orissa in Sita Ramachandra Mahaprabhu v Madano Maharana [1] in this context. He also has contended that the suit agreement of sale is said to be a notarized one but information received under the Right to Information Act, 2005 reveals that by the date of that document the person shown therein to be the Notary concerned was not appointed which disproves the agreement of sale whereby that is relevant here. Learned counsel for the defendants has contended that when no pleadings were made on behalf of the plaintiffs about the document marked upholding the plea of the plaintiffs would not arise at all in respect of which he has relied upon a decision of this Court in Government of Andhra Pradesh v Nalla Manikyamma [2] and also another decision in Chatakondu Govinda Rajulu v G.Sudha Madhuri [3] . I n Nalla Manikyamma a learned Single Judge of this Court observed under similar circumstances “The Court below rejected the said application on two grounds that (i) the certified copies of the documents were not obtained by the petitioner and that they were obtained by a third party and (ii) there is no reference to the documents in the pleadings, which are sought to be received. So far as ground No.1 is concerned, it is not necessary that the petitioner should only obtain the certified copies of the documents and it is no ground at all to reject the application, but the Court below was right in holding that the documents cannot be received in evidence by granting leave in the absence of any reference about the same in the pleadings. This Court is also of the opinion that in the absence of any reference to the documents, which are sought to be received, in the pleadings, the petitioner cannot seek leave of the Court to receive such documents, at the belated stage, when the suit is coming up for further evidence on the side of the plaintiff. Further the judgment relied on by the learned counsel for the petitioner is also of no help to the petitioner as in the said judgment, the documents, which were sought to be marked, were referred to in the plaint. In the said judgment, it was held that certified copies can be received when they are referred to in the plaint and their authenticity is not disputed. In any event, having regard to the findings recorded by the Court below for rejection of the applications, I do not find any illegality in the orders impugned so as to interfere with the same in exercise of powers under Article 227 of the Constitution of India.” In G.Sudha Madhuri another learned Single Judge of this Court observed as follows. The nature and extent of the proof of a promissory note in a case, where the executant is no more, substantially differs from the one, in which the executant is alive. In the cases of the second category, the trial Court would have an occasion to obtain the signatures or thumb impressions of the executant in the open Court and proceed to compare the same with the disputed one, either by sending the documents to expert’s opinion, under Section 45, or undertake comparison, by itself, under Section 73 of the Act. Such a facility does not exist in the first category of cases. There would be serious handicap in identifying the starting point, viz., ascertaining the undisputed signatures. In such cases, it is only when a clear picture emerges, as to the undisputed nature of a signature of a deceased, executant, that the exercise of comparison can be undertaken. It is in this context, that the appellant failed to lay proper foundation. Learned Senior Counsel submits that Section 73 of the Act empowers a Court to undertake comparison of the disputed writings and signatures, by itself. As observed earlier, an exercise of that nature can be undertaken only when the Court has undisputed signatures and writings before it. Such is not the case here. The findings recorded by the trial Court are perverse and not based on any evidence. The lower Appellate Court has corrected the errors committed by the trial Court. No question of law arises for consideration in this Second Appeal. The principles laid down in those decisions hold good here also. First of all absolutely there is no basis that the Will and letters were executed or written by the diseased person. By examining an attestor or scribe of the Will or person who is said to have got knowledge about the writings and signature of diseased testator may not give clear picture in that context. On the other hand that is likely to lead to different complications. Apart from that the defendants who make their claim on the basis of Ex.B3 have to prove that document to uphold their claim. When there is no clear picture to accept that the Will and inland letters were written or signed by the deceased, I find that no useful purpose would be served here. Another important fact is that there is no pleading about these documents. But, however, so far as the RTI information is concerned the plea that that disproves that Mallipeddi Subba Rao executed Ex.B3 agreement of sale is relevant here. The question is whether the person shown to be the Notary therein was in fact appointed as the Notary by the relevant day to uphold the document. In fact admittedly no dispute was raised to receive the document and also to mark it by counsel. The Court below rightly dismissed the I.As except with regards to receiving the RTI information. In the result, the civil revision petitions are partly allowed so far as receiving the RTI information and adducing evidence in that behalf are concerned while dismissing the other part of it. Miscellaneous petitions pending if any shall stand closed. _________________________________ (G.KRISHNA MOHAN REDDY, J) December 07, 2012 YS [1] [2] [3] CDJ 1968 Orissa HC 035 2010 (1) ALD 163 2010 (5) ALD 468