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Friday, April 1, 2016

Order XVIII Rule 17A C.P.C- It is an admitted fact that the suit is at the stage of arguments of the defendants. At this belated stage the relief of the nature cannot be granted. Another aspect which needs to be considered is maintainability of such application invoking section 151 C.P.C. though relief of the nature is akin to the relief that could be considered under Order XVIII Rule 17A C.P.C. The enormous delay that is likely to be caused in entertaining the applications of this nature at every stage succinctly elaborate in the judgment cited by the learned counsel for the respondents. At this stage, this court is conscious of the limitations. Further allowing of the application of this nature at this stage would only be paving way for one or the other of the parties to fill lacuna in evidences which is also not permissible. In that view of the matter, the order passed by the junior civil judge refusing to entertain the application for reopening of the case and further refusal to appoint advocate commissioner cannot be found fault and accordingly there are no merits in the Civil Revision Petition.

HONBLE SRI JUSTICE CHALLA KODANDA RAM          

CIVIL REVISION PETITION No. 534 of 2016  

01-03-2016

Nerudu Srinivas Reddy and another. Petitioners

Neerudu Sunanda @ Sunanda Reddy @ Sripathy Sunanda Reddy rep. by her G.P.A.      
Neerudu Bharathi Devi Respondent...

Counsel for the Petitioner: Sri Srinivas Chitturu

Counsel for the respondent: Sri P. Sriharsha Reddy

<Gist:

>Head Note:
       
? Cases referred:
1. 2009 (1) ALD 548
2. 1992 Law Suit (AP) 381 = 1993 (1) ALT 204
3. 2015 ALT 560
4. (2013) 14 SCC 1

HONOURABLE SRI JUSTICE CHALLA KODANDA RAM            

CIVIL REVISION PETITION No.534 OF 2016    

O R D E R:
      The Civil Revision Petition is filed by the petitioners who are
the defendants in O.S. No.9 of 2007 on the file of the learned
Junior Civil Judge, Nalgonda.  The suit is filed seeking perpetual
injunction restraining the defendants, their agents, servants,
workmen etc., from interfering with the peaceful possession and
enjoyment of the suit schedule property.  The suit schedule
property is an agricultural dry land of Ac.10-00 guntas situated in
Sy.No.98 (98/    ) of Avuravani village, Narketpally Mandal of
Nalgonda District.  Suit is at the stage of arguments, particularly
the defendants arguments.  At that stage I.A.No.330 of 2015 is
filed seeking to reopen the suit and for appointment of Advocate
Commissioner to note the physical features of the suit schedule as
per the work memo to be filed by both the parties.  As per the
averments in the affidavit filed in support of the I.A., the
petitioners have been contending that the suit schedule property
was in their possession and enjoyment for a long time.  The suit
schedule property is only a portion of the land in the entire survey
number and according to them they have made developments in
the land which would show their possession and enjoyment.
Unless an Advocate Commissioner is appointed to note the various
physical features such as available water resources, irrigation
channels, mosambi garden and localization of the suit schedule
property in the total extent of the survey number great prejudice
would be caused to the petitioners.  The grant of relief in the I.A.
was resisted by the respondents/plaintiffs.  Learned Junior Civil
Judge, Nalgonda, after considering the case on merits dismissed
the I.A.
      Sri Chitturu Srinivas, learned counsel for the petitioners
would urge that while reiterating the averments in the I.A. affidavit
and by drawing specific attention of this court to the pleading in
the written statement particularly about the existence of bore wells
and the water sources unless these aspects are brought on record
the controversy in issue cannot be resolved.  It is the case of the
petitioners that, as pleaded by them in the written statement, it is
only by virtue of interim injunction granted by the Court
respondents-plaintiffs unlawfully entered into the possession and
unless this court reopens the case and appoints Advocate
Commissioner great prejudice would be caused to the petitioners.
He submits by placing reliance on the judgments of this court in
Yeera Ayyanna Vs. H. Marthamma , B. Lalita Devi Vs. Special
Court under A.P. land Grabbing (Prohibition) Act  and K.
Dayanand and another Vs. P. Sampath Kumar  and contends  
that in exercise of the inherent power of the court under Section
151 of CPC, the Court has ample power to grant relief and further
there is no bar for appointment of Advocate Commissioner if the
same is helpful in deciding the controversy in issue, as such no
prejudice would be caused to the respondents.
      On the other hand Sri P. Sriharsha Reddy by placing
reliance on the judgment of the Supreme Court in Bagai
Construction Vs Gupta Building Material Store   would submit
that the reopening of the evidence is impermissible and such
reopening of the case at belated stage under Section 151 C.P.C. is
impermissible.  Therefore, he prays for dismissal of the Civil
Revision Petition.
      Having considered the rival submissions one thing may be
noticed that the IA was filed invoking inherent powers of the court
under section 151 CPC.  CPC does not provide any specific
provision for reopening of a case after completion of recording
evidence.  It is only for that reason petitioners had invoked the
inherent power under Section 151 CPC.  The invoking of inherent
power under Section 151 C.P.C. in the facts of the present case is
for bringing of further evidence in the form of an Advocate
Commissioners report by the petitioners.  In that view of the
matter, the procedure for adducing and recording of evidence as
provided for under Order XVIII may be noticed.  Order XVIII C.P.C.
deals with the rights of the parties for leading evidence and for
further addressing arguments including the power of the Court to
examine or cross-examining a witness and also recall and
reexamine a witness.  Order XVIII Rule 17A C.P.C. where a
provision was available for production of evidence not previously
known or which could not be produced despite due diligence was
repealed by the Act 46 of 1999, Code of Civil Procedure
(Amendment) Act, 1999 with effect from 01.07.2002.  In other
words, the right of a party to produce evidence not previously
known or which could not be produced despite due diligence was
also taken away.  The effect of the omission of Order XVIII Rule
17A C.P.C. in the context of the other provisions would leave no
manner of doubt that the parties to the proceedings are required to
be diligent in the first instance and at every stage to protect their
interests and bring best possible evidence at the earliest.  The
same is evident from various other amendments which have been
brought in the CPC.  The object of various amendments is to
curtile the delay in disposal of the suits and to discourage the
parties to the suit to prolong the proceedings.  In the present case,
it is not even the case of the petitioners that the application of the
nature seeking appointment of the Advocate Commissioner to note
the physical features of the suit schedule land could not have been
made at the earliest point of time. We may note that the suit came
to be filed in the year 2006, numbered in the year 2007 and the
written statement itself came to be filed by the petitioners on
28.03.2007.  It is an admitted fact that the suit is at the stage of
arguments of the defendants.  At this belated stage the relief of the
nature cannot be granted.  Another aspect which needs to be
considered is maintainability of such application invoking section
151 C.P.C. though relief of the nature is akin to the relief that
could be considered under Order XVIII Rule 17A C.P.C.   The
enormous delay that is likely to be caused in entertaining the
applications of this nature at every stage succinctly elaborate in
the judgment cited by the learned counsel for the respondents.  At
this stage, this court is conscious of the limitations.  Further
allowing of the application of this nature at this stage would only
be paving way for one or the other of the parties to fill lacuna in
evidences which is also not permissible.  In that view of the matter,
the order passed by the junior civil judge refusing to entertain the
application for reopening of the case and further refusal to appoint
advocate commissioner cannot be found fault and accordingly
there are no merits in the Civil Revision Petition.
      Accordingly the Civil Revision Petition is dismissed.  There
shall be no order as to costs.  Miscellaneous petitions, if any,
pending shall also stand closed.

-----------------------------------
CHALLA KODANDA RAM, J      
Dated:01.03.2016

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