Re-open petition, witness summons petition and Document petition filed at the time of arguments - earlier petition for summoning of a witness was dismissed - again fresh petitions - Lower court passed cryptic order allowing the petitions on the ground that an opportunity has to be given - with out considering the delay , resjudicate and maintainability of petitions - their Lordships of High court set aside the same as it suffer from patent infirmities and fundamental and foundational defects and remitted the matter for fresh disposal = Duvvada Parasuram Choudary and two others....Petitioners Santha Dalayya and 30 others.. Respondents =2014 (Feb.Part) judis.nic.in/judis_andhra/filename=10893

Re-open petition, witness summons petition and Document petition filed at the time of arguments - earlier petition for summoning of a witness was dismissed - again fresh petitions - Lower court passed cryptic order allowing the petitions on the ground that an opportunity has to be given - with out considering the delay , resjudicate and maintainability of petitions - their Lordships of High court set aside the same as it suffer from patent infirmities and fundamental and foundational defects and remitted the matter for fresh disposal =
Claimants 4 to 10 and 17 to 25 filed
I.A.No.31 of 2011 seeking for reopening of the matter for examination of the
proposed witnesses and I.A.No.32 of 2011 was filed praying the Court to issue
summons to the Tahsildar, Palasa to produce the documents reports dated 
18.06.1980 and 10.09.1984 passed by the then Tahsildar to give evidence.
I.A.No.33 of 2011 was filed, requesting the Court below to issue summons to Sri
D.Subhash Chandra Bose and K.Balarama Murthy to give evidence with reference to  
the reports dated 18.06.80 and 10.09.1984 for marking the same as exhibits.  =

The evidence of the defendant had been commenced from
28.11.2005 and since then the matter had undergone several adjournments.
Further it is stated that the petitioner already had examined four witnesses and
the evidence was closed on 06.11.2006 and the matter was head on behalf of the
plaintiff.  At the stage of arguments of the defendants, again an application
was filed to recall D.W.1 and the same was allowed and Exs.B-12 to B-22 were
marked.  Thereafter, the arguments of the plaintiff were heard and again the
matter was posted for the arguments of the defendants and at this stage, the
present application was filed.  It is also pertinent to note that the suit filed
is for eviction of the petitioner on the strength of the notice issued under
Section 106 of the Transfer of Property Act.  Further reasons had been recorded
in para 7 and it was recorded that the examination of this witness may not serve
any prupose and only with a view to further procrastinate of matter, this
application had been thought of.  When the application is such a belated
application and also not a bona fide application andin the light of the reasons
in paras 6 and 7 of the impugned order, this Court is of the considered opinion
that the said order cannot be found fault and even otherwise, this is not a fit
case to be interfered with under Article 227 of the Constitution of India.  In
view of the same, the C.R.P.shall stand dismissed at the stage of admission.  No
order as to costs."
In the judgment in the case of CHHABIL DAS v.PAPPU 1, the
Hon'ble Apex Court at paragraph 12 held as under:
        "12. It is now well known that the principle of res judicata also applies
in different stages of the same proceedings."

 In D.RAM MOHAN RAO v. SRIDEVI HOTELS PVT.LTD.AND ANOTHER12 held as under:            
        "As can be seen, Rule 6 of Order 16 of C.P.C. enables the Court to summon
any person to produce a document without being summoned to give evidence.
Obviously, the said provision does not attract to a situation where the party
himself seeks to summon production of a particular document.  On the contrary,
Rule 129 prescribes the procedure for production of records in the custody of a
public officer other than a Court."
Conclusion -
After giving a thoughtful consideration to the issue involved in the
present revisions, this Court is of the considered opinion that the orders
passed by the court below, which are impugned in these revisions suffer from
patent infirmities and fundamental and foundational defects.  This Court is also
of the opinion that the Court below failed to consider various contentions
advanced by the parties to the litigation from proper perspective and by taking
into consideration the principles laid down by the Apex Court and this Court.
Therefore, this Court deems it appropriate to set aside the impugned orders and
remand the Interlocutory Applications for fresh disposal after giving
opportunity to all the parties to the litigation.
        For the aforesaid reasons and having regard to the principles laid down by
Hon'ble Apex Court and this Court, these Civil Revision Petitions are allowed
and the orders passed by the Court below in I.A.Nos.31, 32 and 33 of 2011 in
L.A.O.P.No.33 of 2002 are hereby set aside and the said Interlocutory
applications are restored to file and remanded to the Court below and the Court
below is directed to dispose of the said I.As afresh within a period of three
months from the date of receipt of copy of this order after giving opportunity
to the parties. 
2014 (Feb.Part) judis.nic.in/judis_andhra/filename=10893
THE HON'BLE SRI JUSTICE A.V.SESHA SAI    

CIVIL REVISION PETITION No.2719 of 2012 and batch  

05-02-2014

Duvvada Parasuram Choudary and two others....Petitioners

Santha Dalayya and 30 others.. Respondents

Counsel for the Petitioners: Sri S.Srinivasa Rao Counsel for Respondents: Sri
M.P.Chandramouli

<Gist:

>Head Note:

?Cases referred:

1. (2006) 12 SUPREME COURT CASES 41    
2. 2011(1) ALD 26 (DB)
3. 2007(2) ALD 475
4. 2006(3) ALT 422 = 2006(3) ALD 94
5. 2004(1) An.W.R.250(A.P.) = AIR 2004 AP 192
6. AIR 1995 SC 1984
7. 1996(2) CCC 465 (Kam.)
8. AIR 1989 Orissa 145
9. AIR 1989 P & H 226
10. AIR 1987 Rajasthan 206
11. 2004(5) ALT 55 = AIR 2004 A.P. 516
12. 2006(1) ALD NOC 31


THE HON'BLE SRI JUSTICE A.V.SESHA SAI    

CIVIL REVISION PETITION Nos.2719, 2993 AND 3036 OF 2012    

COMMON ORDER:    
     
        Since these three revisions, filed under Article 227 of the Constitution
of India, arise out of L.A.O.P.No.33 of 2002 and since they are interrelated,
this Court deems it appropriate to dispose of these three revisions by way of
this common order.
        Heard Sri S.Srinivasa Rao, counsel for the petitioners and Sri
M.P.Chandramouli, counsel for the respondents and perused the material available
on record.
        Claimant Nos.2 to 4 in L.A.O.P.No.33 of 2002 on the file of the Court of
Senior Civil Judge, Sompeta, are the petitioners in these civil revision
petitions.  C.R.P.No.2719 of 2012 is filed against the order in I.A.No.31 of
2011 dated 03.02.2012, C.R.P.No.2993 of 2012 is filed against the order in
I.A.No.32 of 2011 and C.R.P.No.3036 of 2012 is filed against the order in
I.A.No.33 of 2011 in the said L.A.O.P.  
Claimants 4 to 10 and 17 to 25 filed
I.A.No.31 of 2011 seeking for reopening of the matter for examination of the
proposed witnesses and I.A.No.32 of 2011 was filed praying the Court to issue
summons to the Tahsildar, Palasa to produce the documents reports dated 
18.06.1980 and 10.09.1984 passed by the then Tahsildar to give evidence.
I.A.No.33 of 2011 was filed, requesting the Court below to issue summons to Sri
D.Subhash Chandra Bose and K.Balarama Murthy to give evidence with reference to  
the reports dated 18.06.80 and 10.09.1984 for marking the same as exhibits.  The
petitioners herein filed counter before the Court below, opposing the said
applications.
The learned Senior Civil Judge, Sompeta, by virtue of orders
dated 03.02.2012 dismissed the said I.A.Nos.31, 32 and 33 of 2011.
        Calling in question the validity and legality acceptability of the said
orders passed by the learned Senior Civil Judge, Sompeta, the present civil
revision petitions have been filed under Article 227 of the Constitution of
India.
In the present revisions, it is contended by the counsel for the
petitioners that the present applications filed by the respondents herein are
belated since the respondents filed the same at the time of arguments.  It is
further contended by the learned counsel for the petitioners that the present
applications are also barred by the principles of res judicata and estoppel as
the respondents earlier filed I.A.Nos.17 and 18 of 2005 and the same were
dismissed by the Court below on 21.03.2005.  It is further contended that the
respondents did not assail the said orders and they were allowed to become
final.
To bolster his submissions and contentions, learned counsel for the
petitioners places reliance on the judgment of the Hon'ble Apex Court in the
case of Chhabil Das Vs. Pappu reported in (2006) 12 SCC 41.
Per contra, it is
strenuously argued by the learned counsel for the respondents that the orders
passed by the Court below do not suffer from any infirmity, as such, they do not
require any interference of this Court under Article 227 of the Constitution of
India.  It is further contended by the learned counsel for the respondents that
in view of the finding of the Supreme Court at paragraph 14 of the Judgment
reported in 2010(2) SCC 452, the Court below is perfectly justified in ordering
the applications.  It is further contended that the persons sought to be
summoned are the correct persons and their evidence is crucial to unearth the
realities in the issue.
        Now, the points which arise for consideration of this Court are:
        "Whether the orders passed by the Courts below which are impugned in the
present revisions suffer from any infirmities and whether the same warrant any
correction by this Court under Article 227 of the Constitution of India?"
        In the affidavit filed in support of the applications, the respondents
herein stated that the petition schedule properties belonged to them and they
are entitled for compensation and the Tahsildar, Palasa conducted enquiry and
passed an order dated 10.09.1984 in respect of the acquired lands and other
lands and that the same is a crucial document to decide the facts in issue and
for a just decision of the case.  The respondents herein further stated in the
said supporting affidavit that it would be necessary to reopen the matter to
examine Sri D.Subhash Chandra Bose, now working as Deputy Collector and
Sri K.Balarama Murthy, the then Tahsildar, who passed orders on 18.06.1990 and
10.09.1994 and to mark the said documents as exhibits.  The respondents further
pleaded in the said affidavit that unless they are permitted, they would sustain
great and irreparable loss.  On the other hand, opposing the said applications,
the petitioners herein filed a counter before the court below, stating that the
documents have no relevance in the matter and that the said documents have been
considered by this Court in the judgment dated 27.03.1997 passed in Second
Appeal No.361 of 1996 and that the judgement of the High Court merged with the
judgment of the Hon'ble Apex Court in C.A.No.6900 to 6906 of 2001 and
C.A.Nos.6907 to 6946 of 2001 as reported in 2010(2) ALD 49 (SC).  The
petitioners herein further pleaded that in the main case, evidence was closed
way back in the month of February, 2005 and the claimants 1 to 3 filed their
written arguments on 28.02.2005 and thereafter the respondents filed I.A.Nos.17
and 18 of 2005 on 21.03.2005 to reopen and to examine the Mandal Revenue
Officer, Palasa and that the said applications were dismissed and subsequently,
the matter was heard and judgment was reserved and that the present applications
were barred by the principles of resjudicata and they are intended only for the
purpose of dragging on the matter.  A reading of the impugned orders in clear
and unequivable terms, disclose that none of the contentions advanced by the
petitioners herein were appreciated by the court below, except referring to the
same.  The court below did not consider the impact and effect of the orders,
passed in I.A.Nos.17 and 18 of 2005 nor properly appreciated the principles laid
down in the judgments referred to in the impugned orders.  Except recording a
finding that an opportunity shall be given to the petitioners to mark the
documents, no other valid reason is assigned by the court below for ordering the
applications in the light of various averments and contentions of the
petitioners herein.  In the judgment in the case of CHHABIL DAS v.PAPPU 1, the
Hon'ble Apex Court at paragraph 12 held as under:
        "12. It is now well known that the principle of res judicata also applies
in different stages of the same proceedings."
     
        In STATE OF ANDHRA PRADESH AND OTHERS v.K.VITTAL REDDY AND ANOTHER 2 at              
para 18 this Court held as under:
        "18.  Having invited a finding in the above order upon their contention
that their lands, being agricultural in nature, stood excluded from the purview
of the Act of 1976, the endeavour of the petitioners in seeking to lay the same
challenge once again in the present litigation is barred by the doctrine of res
judicata.  This doctrine is often treated as a branch of the law of estoppel,
though the two differ in some essential particulars.  The rule of res judicata
prevents the parties to a judicial determination from litigating the same
question again even though the determination may be demonstrably wrong.  When
the proceedings attain finality, parties are bound by the judgment and are
estopped from questioning it.  They cannot litigate again on the same cause of
action nor can they litigate any issue which was necessary for decision in the
earlier litigation.  These two aspects are 'cause of action estoppel' and 'issue
estoppel'.  These two terms are of common law origin.  Once an issue is finally
determined, the only remedy for the parties is to approach the higher forum if
available.  The determination of the issue between the parties gives rise to an
issue estoppel.  It operates in any subsequent proceedings in the same suit in
which the issue had been determined.  It alo operates in subsequent suits
between the same parties in which the same issue arises.  Section 11 CPC
contains provisions of res judicata but these are not exhaustive of the general
doctrine of res judicata.  The plea of res judicata, though technical, is based
on public policy in order to put an end to litigation [Hope Plantations Ltd. V.
Taluk Land Board, Peermade, (1999) 5 SCC 590]."

        In A. SHANKAR LINGAM v. MEHARUNNISA BEGUM AND OTHERS3 at para 9 this Court          
held as under:
        "9.It is no doubt true that normally the parties to be permitted to
examine the witnesses at their choice and the Courts are expected to adopt a
liberal approach.  Strong reliance was placed on the under noted decisions:
        Addagatla Narender v. Some Vijayalakshmi4
        Veluguri Vijaya Venkata Lakshmi Narayana Vs. Athukuri Nageshwara Rao5  
        Lalitha J.Rai Vs.Aithappa Rai6
        Sikhandarsaheb and another Vs.Husenasaheb7  
        M/s. Bennett Coleman and Co.Ltd. Vs.Janaki Ballav Patnaik8
        M/s.Preet Cold Storage and Ice Factory and another Vs.M/s. United
Commercial Bank, Sangol and others9
        Kalu and another Vs.Chhitar and others10 and N.Balaraju and another
Vs.G.Vidhyadhar11
        There cannot be any quarrel with the proposition of law which had been
laid down in the decisions which had been cited by the Counsel representing the
revision petitioner.  The evidence of the defendant had been commenced from
28.11.2005 and since then the matter had undergone several adjournments.
Further it is stated that the petitioner already had examined four witnesses and
the evidence was closed on 06.11.2006 and the matter was head on behalf of the
plaintiff.  At the stage of arguments of the defendants, again an application
was filed to recall D.W.1 and the same was allowed and Exs.B-12 to B-22 were
marked.  Thereafter, the arguments of the plaintiff were heard and again the
matter was posted for the arguments of the defendants and at this stage, the
present application was filed.  It is also pertinent to note that the suit filed
is for eviction of the petitioner on the strength of the notice issued under
Section 106 of the Transfer of Property Act.  Further reasons had been recorded
in para 7 and it was recorded that the examination of this witness may not serve
any prupose and only with a view to further procrastinate of matter, this
application had been thought of.  When the application is such a belated
application and also not a bona fide application andin the light of the reasons
in paras 6 and 7 of the impugned order, this Court is of the considered opinion
that the said order cannot be found fault and even otherwise, this is not a fit
case to be interfered with under Article 227 of the Constitution of India.  In
view of the same, the C.R.P.shall stand dismissed at the stage of admission.  No
order as to costs."

        In D.RAM MOHAN RAO v. SRIDEVI HOTELS PVT.LTD.AND ANOTHER12 held as under:          
        "As can be seen, Rule 6 of Order 16 of C.P.C. enables the Court to summon
any person to produce a document without being summoned to give evidence.
Obviously, the said provision does not attract to a situation where the party
himself seeks to summon production of a particular document.  On the contrary,
Rule 129 prescribes the procedure for production of records in the custody of a
public officer other than a Court."

        After giving a thoughtful consideration to the issue involved in the
present revisions, this Court is of the considered opinion that the orders
passed by the court below, which are impugned in these revisions suffer from
patent infirmities and fundamental and foundational defects.  This Court is also
of the opinion that the Court below failed to consider various contentions
advanced by the parties to the litigation from proper perspective and by taking
into consideration the principles laid down by the Apex Court and this Court.
Therefore, this Court deems it appropriate to set aside the impugned orders and
remand the Interlocutory Applications for fresh disposal after giving
opportunity to all the parties to the litigation.
        For the aforesaid reasons and having regard to the principles laid down by
Hon'ble Apex Court and this Court, these Civil Revision Petitions are allowed
and the orders passed by the Court below in I.A.Nos.31, 32 and 33 of 2011 in
L.A.O.P.No.33 of 2002 are hereby set aside and the said Interlocutory
applications are restored to file and remanded to the Court below and the Court
below is directed to dispose of the said I.As afresh within a period of three
months from the date of receipt of copy of this order after giving opportunity
to the parties.  No order as to costs.
__________________
JUSTICE A.V.SESHA SAI  
05.02.2014

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