Gunda Vijaya Lakshmi v. Pentvata Naqeswara Rao

Petition under Arlicle 227 of the Constitution of lndia, aggrieved by the order in l.A.No.s of 2025 in O.S.No.165 of 2017 dated 06 08.2025 on the file court of the Principal District Judge at Khammam District. j I I I I I t I ! I I Between: Gunda Vijaya Lakshmi, Wo. Bala Raju, aged about 58 years, Occ. House Hold, R/o H. No. tt-to-256/1, Raparthi Nagar - ll, Khammam Town and District. ...Petitioner AND Pentyala Nageswara Rao, S/o. Venkatramaiah, aged about 63 years, Occ. Agriiulture, R/o. H.No. 1 1 -1 0 -77 51 1 OlD, Raparthi Nagar -ll, Khammam Town and District. ...Respondent lA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of all proceedings in O.S.No.165 of 2017 on the file of the Principal District Judge, Khammam, pending disposal of the above revision petition. Counsel for the Petitioner: SRI M.V.B.S.NARAStMHA ANUDEEP Counsel forthe Respondents: SRI TARUN RAM AITHAM The Court made the following: COMMON ORDER '_i I r\ THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI C.R.P.NOS. 3814 AND 3858 ()F 20,25 r- COMMON ORDER: Botll these Civil Revision Petitions arise out of the orders of the Principal District Judge, Khammam, dated 06.08.2025 in I.A.No.S of 2025 and I.A.No.6 of 2O25 in O.S,No.165 of 2017.

2. The petitioner is the defendant in tJle Suit frled for recovery of money. The written statement was filed on

06.04.2018. The petitioner hled I.A.No.S of 2025 under Order 16 RuIe 1 read with Section 151 of C.P.C., to issue summons to the witnesses mentioned in the list to secure their attendance and examination and I.A.No.6 of 2025 is frled under Order 18 Rule 17 read with Section 151 of C.P.C.; to recall the DWl for further evidence with reference to the Compact Disk {CD) submitted by the defendant and to pass such other order or orders. Both the applications were dismissed by the trial Court vide separate orders dated 06.08.2025 and the present Civil Revision Petitions are filed against the same.

3. Brief facts leading to the filing of the Suit are that the plaintitf claimed that he and the defendant were well acquainted with each other and out of such acquaintance, the 2 defendant had borrowed an amount of Rs.20,O0,00O/- from the plaintiff on 18.12.2014 at Khammam, with a promise to repay the said sum with interest @ 24% per annum and executed a promissory note to this effect and that the defendant lailed to pay the principal amount and also interest thereon ald therefore, a suit was filed for a total amount of Rs.34,29,333/-. The defendant, in her written statement denied the averments in the plaint and stated that the defendant had never borrowed the alleged sum of Rs-20 Lakhs on 18.12.2014 and had also denied execution of the alleged promissory note. In the written statement, the details of other transactions with the plaintiff are also recited.

4. In I.A. No.5 of 2025, the petitioner has stated that there was a conversation between the ptaintiff and his daughter- in-law with the husband of the petitioner and that the said conversation is being submitted in the form of an audio CD along with a certificate under SecLion 65-8 of the Indian Evidence Act. Further, the petitioner also wanted to file certain documents and mark them as evidence and for the said pu{pose, she submitted that the plaintiff and his daughter-in- law are required to bc summoned as witnesses. i i l I i ! ! I T a IJ a 3

5. The I.A.No.6 of 2025 was Iiled seeking recall of DWI for further evidence with reference to the CD, whiph was already received by the Court and kept in record' The CD a-tlegedly contains the conversation between the plaintilf, his daughter-in- law and the husband of the petitioner'

6. The trial Court, vide separate orders dated 06.08.2025, has observed that the plaintiff side evidence was closed long back and that thereafter, DWsl to 5 were examined on behalf of the petitioner/ defendant and these applications are hled to summon the proposed witnesses to give their evidence at this juncture and it was also observed that the husband of the petitioner/ defendant was examined as DW2 and in his cross examination, he categorically admitted ttrat the suit transaction has nothing to do with lhe transaction between himself, son and daughter-in-lau, of the plaintiff and that the petitioner also admitted her signature on the suit promissory note and there is no whisper in the written statement frted by the defendant about the recording of any conversation and converting the same into CD and therefore, on the ground that in the absence of pleading, any amount of oral or documentar5r evidence cannot be looked into and cannot be taken into consideration, both I t ) 4 I.A.No.S of 2025 and I.A.No.6 of 2025 were dismissed and ttre present Civil Revision Petitions are filed.

7. The learned counsel for the petitioner reiterated the averments made in the affidavits filed in support of the said applications.

8. Learned counsel for the respondent supported the impugned orders.

9. The learned counsel for the petitioner also placed reliance upon the decision of the Hon'ble Supreme Court in the cases of Shubhkaran Singh Vs. Abhayraj Singh and Others in Special Leave Petition to Appeal (c) Nos. t2ot2-t2ol3 /2025 and Bachhaj Nahar Vs. Nilima Mandal and Anotherr, in support of her contentions.

10. Having regard to the rival contentions and the material on record, this Court hnds that the petitions are hled under Order 16 Rule 1 read with Section 151 of C.P.C., and Order 18 Rule 17 read with Section 151 of C.P.C., respectively. L (2008) 17 scc 49t !i E i a 5 Order 16 Rule 1 of C.P.C., reads as under:

1. List of tttitnesses and summons to rritnesses.- (1) On or before such date as tte Coutt mag appoint, and not later than fifteen dags after the date on ttthich the i.ssues are settled, the Parties shall present in Court a list of uitnesses uhom tLeg propose to call either to giue euidence or to produe doanments and obtain summonses to such persons for tleir ottendone in Court- (2) A partg desirous of obtaining anA summons for tle atten-dance of ang person shall ftle in Coutt an application stoting therein tte purpose for uhich the toitness is proposed to be summoned' (3) The Court mag, for reasorls to be rearded, permit a party to call, uhether bg summoning through Court or otlrcrutise, any witness, otler t?wn those ttthose nomes appeor in the list referred to in sttb-rule (1), if such partg shortls sufJicient couse for the omission to mention the nome of such toitness in tlg said list. (4) Subject to the prouisions of sub-rule (2)' s.rtmmo'zses refetred to in this rule may be obtained bg tle parties on an applicotion to the Court or to ich officcr as maA be oppointed by the Court in this behalf ftaithin fiue dags of presenting tle list of taitnesses under sub-rule (7)-l Order 18 Rute 17 of C.P.C., reads as under:

17. Court mag recoll and examine lDitness- The Court moA ot anA stage oJ o suit recall ang uitness u;ho has been examined and mag (subject to tte latu of euidence for the time being in force) put such questions to Lim os the Court thinks fiL 1 1. A literal reading of the above provisions shows that a person whose name is not mentioned in the list of witnesses' 6 may be summoned or recalled if the party seeking the said relief shows sullicient cause for the same. The petitioner is seeking summoning of a witness without satisrying the above conditions, i.e., showing suflicient cause for omitting to mention the name of such witness in the list of witnesses. Further, the suit is filed for recovery of money under promissory note dated

18.12.2024, the suit was hled in 2017, the written statement was filed in 2O18, while these petitions are filed in 2025 after the evidence of the plaintiff and also the evidence of DWi to DW5 has been recorded. The conversations in the subject CD relate prior to ttre date of promissory note, but there is no reference, leave alone, a whisper about the same in the written statement.

12. The Hon'ble Supreme Court in the case of Shubhkaran Singh (ated supra) has observed as under Para. 1O: We are of the opinion thot if ciranmstances wanant, an opporlunitu to a porllJ to re-call a u-titness for examining, cros.s- examininq or re examining can be gronted bg o Court in the exercise of its inherent jurisdictbn under Section 151 C.P.C. Para.ll: This Courl in the case of Vadtaj Noggappa Verneknr Vs. Sharadchandra Prabhakar : E 7 Gogate, reported at (2009) 4 SCC 410 more particularlg para 28 held as und.er: "28. The wu-rcr und.er the oroui,sion-s of Order 18 exercised and. in Rt1b 17 CPC is to be s, aDDroDiate cnses ond not as a aeneral ntle merelu on the qround tlwt his recall ond reexaminotion uould not @use anu preiu dice to ttte Darties. Tfat is rnt th.e schpne or intention of Order 18 RulejLe?C.1

13. In the case of Bachhaj Natat (cited supra) it was held as under: Para.75. The releuant pincipte relating to circuflt-stances in u-thich the deficiency in, or absence of, pleadings could be ignored, uas stated bg a Constitution Bench of this Court in Bhaguati Prasad Vs.'Shrf Chand.ramaul, reported in AIR 1966 SC 735 (Air p.738, parolO): "1O. ... If a plea is not speciftcollg made and get it is auered bg an issue bg tmplication, ond the parties knew that tlte said plea uas inuolued in the tiat, tLen the mere fact tlaat the pleo tuas not expressly taken in the plealings u.tould. not necessailg di-sentitle a pattA fiom relying upon if i, rs sotis/acto ily proued- bg eui.dencc. Tle general rule no doubt is that the relieJ slwld. be founded on pleadings made bg the parties. But uhere the substantiol matter reLating to the title of both parties to the suit uas touched, though indirectlg or et)en obsanrelg in the issues, and euidence Lns been led about th,em then the orryment that a partianlar motter u)as not expresslu taken in the pleadirtgs tuould. be pureLg formal and technical and 8 r- connot succeed in euery c _se. Whnt the Court Lus to atnsider in dealing uith such qn objection is: did tlrc parties knou.) thot the nwtter in question wos inuolued. in the trial, and. did they lead_ eui.d.ence about it? If it appears that the parties did not knou.t that the matter tuos in issue at the trial and. one of tLem has had no oppottunitg to Lead euidence in respect of it, that undoubtedlA tuould be a different matter. To allow one partA to relg upon a matter in respect of u.thich the other partg d.id not lead. euidence and has tnd- no opportunitA to lead. euidenec, would introduce considerations of prejudice, anl in doing justice to one partg, the Court cannot do injustice to another.,, Para- 16: The pincipte taas reiterated. bg tttis Court in Ram Sarup Gupta (d.ead) bg LRs., Vs. Btshun Narain Inter Coltege, reported in AIR j9g7 SC j242: (SCC pp.562-63, para 6) "6. ...ft is uelt settted that in the absence of pleading, euidence, if ang, produced. bg the parties cannot be considered.It is also equaltA settled. that no partg should be permitted. to trauel beyond. its pleading and that all neessary and mateial facts should be pleaded bg the partg in support of the case set up bA it. The object and. purpose of pleading ts to enable the aduersary partg to knout tle case it hr.s to meet. In order to haue a fair tial it is imperatlue that the partg should state tlrc essentiat mateial facts so that other partg mag not be taken bg surprise. The pleadings hotueuer slould. receiue a tiberal consttuction, no pedantic approach should be ad.optecl to defeat justice on hair splitting technicalities. l i t i I r I E I I I t ! i I i t L I i I I i i j I I i i t 9 Somettmes,. pleadings are expressed in u-tords u.thich mag not e4tresslg make out a co.se in o.*rdolrrn uith strict interpretation of laut, in such a cose it i.s tte dutg of tle @urt to o,scertain thP substance if the pleadhqs to determine the question. It is not desirable to plae undue emphasis on fonry instead. thP substan@ of the pleadings should be considered.. Wheneuer the qtestion about lack of pleading is raised. the enqtirg should not be so much about th.e form of pleadings, instead. the courT must find out tuhether in s-ubstance the parties knew the case and the r:s$tes upon uhich they u-)ent to tial. Once it is found. ttat in spite oJ d.eficiency in the pleadings, parties kteut the ca.se and theg proceed.ed. to tial on those issues bg producing euidence, in that euent it uould not be open to o party to raise the qtestion of a.bsene of pleodings in oppeal." L4. For applying the above rationale to the facts of the case on hand, it is observed that there are no special circumstances warranting exercise of the power under Order 18 Rule 17 of C.P.C., to recall and examine any witness for giving evidence. It is an admitted and undisputed rule position that in tl"e absence of pleadings, the witness cannot be summoned to give evidence and the additional evidence cannot be accepted. In these two applications, the entire case is that the petitioner has recorded the conversation of the ptaintiff and his daughter-in- law with the husband of the petitioner and therefore, it is 10 necessary evidence. The trial Court has properly appreciated the lacts of the case for holding that in the absence of pleadings, the witnesses cannot be summoned or evidence carnot be accepted. Therefore, this Court is not inclined to interfere with the same and the Civil Revision Petitions are liable to be dismissed.

15. Both the Civil Revision Petitions are accordingly dismisscd. There shall be no order as to costs.

16. Miscellaneous petitions, if any, pending in these Civil Rcvision Petitions, shall stand closed. //TRUE COPY// Sd/. L, LAKSHMI BABU ASSISTANT REGISTRAR ,!9 SECTION OFFICER I To, 1 The Pflnopat District Judge at Khammam District. 2 One CC to SRI M.V B.S,NARAS|MHA ANUDEEP, Advocate IOPUC] 3 One CC to SRI TARUN RAM A|THAM, Advocate [OpUC] 4 Two CD Copies NVI],'PR HIGH COURT DATED:1811112025 COMMON ORDER CRP.Nos.3814 and 3858 of 202 I r5. S o o * 1 6 ''ll lJ?t * DISMISS!NG THE BOTH CIVIL REVISION PETITIONS u A + ^ + I I I r E