to receive an unregistered agreement of sale dated 21-04-2002 and I.A.No.355 of 2012 to recallPW-1 for the purpose of marking that unregistered agreement of sale. = ought to have received the agreement of sale and recalled PW-1 for marking the document. In fact in the plaint in O.S.No.234 of 2007 it is stated that there is an agreement of sale dated 21-04-2002 without specifically mentioning that it is an oral sale agreement. However when the document is sought to be received, the same can be received subject to the circumstances enumerated. When it is not stated in the plaint in O.S.No.234 of 2007 that there was oral agreement entered into in respect of the property scheduled therein, it may be difficult to say that there was only oral agreement of sale. Apart from that the plea of the plaintiffs’ counsel that by mistake in the other suit (O.S.No.525 of 2005) it was mentioned as oral agreement of sale may also be looked into. However even otherwise though contradictory statements are taken it is necessary to give opportunity to the party to mark the document and prove his claim. The matter is to be examined in a broader perspective and in the interest of justice.

HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY

C.R.P.Nos. 13 of 2013 and 6450 of 2012

COMMON ORDER:

In these Civil Revision Petitions (C.R.Ps), common question of law and facts are involved and the parties are also common, hence they are being disposed of by this common order.

These CRPs are directed against common order dated
08-08-2012 passed in I.A.Nos.354 of 2012 and 355 of 2012 respectively in O.S.No.234 of 2007 on the file of the Court of
IX Additional District Judge (FTC), Visakhapatnam (IAs).

The petitioners herein are also the petitioners in the IAs and plaintiffs in the suit whereas the respondents herein are also the respondents in the IAs and defendants in the suit.
For convenience sake, I refer the parties as arrayed in the suit.

The plaintiffs filed the suit for cancellation of a sale deed said to be executed by the defendants in favour of a third party.  They filed I.A.No.354 of 2012 to receive an unregistered agreement of sale dated 21-04-2002 and I.A.No.355 of 2012 to recallPW-1 for the purpose of marking that unregistered agreement of sale.  The Court below after hearing the parties dismissed the IAson the ground that in another suit (O.S.No.525 of 2005) filed by the second defendant the plea of oral agreement of sale was taken by the plaintiffs in respect of the same property which is contrary to the plea taken in the present suit (O.S.No.234 of 2007), aggrieved by which the present CRPs have been filed.

Learned counsel for the plaintiffs has contended that in the plaint filed in the present suit (O.S.No.234 of 2007) it is clearly recited that there was an agreement of sale and by mistake in the other suit (O.S.No.525 of 2005) it was mentioned that there was only oral agreement of sale.  Therefore, the Court below 

ought to have received the agreement of sale and recalled PW-1 for marking the document.  

In fact in the plaint in O.S.No.234 of 2007 it is stated that there is an agreement of sale dated 21-04-2002 without specifically mentioning that it is an oral sale agreement. However when the document is sought to be received, the same can be received subject to the circumstances enumerated.  When it is not stated in the plaint in O.S.No.234 of 2007 that there was oral agreement entered into in respect of the property scheduled therein, it may be difficult to say that there was only oral agreement of sale.  Apart from that the plea of the plaintiffs’ counsel that by mistake in the other suit (O.S.No.525 of 2005) it was mentioned as oral agreement of sale may also be looked into.  However even otherwise though contradictory statements are taken it is necessary to give opportunity to the party to mark the document and prove his claim. The matter is to be examined in a broader perspective and in the interest of justice.  Otherwise injustice may be done to him.  In these circumstances, I feel that the orders of the Court below rejecting to receive the document are not proper. 

Hence, both the Civil Revision Petitions are allowed.
The impugned orders are set aside directing the Court below to receive the agreement of sale dated 21-04-2002 and to mark it by recalling PW-1 for that purpose.   However the genuineness of the document is to be decided taking into consideration the overall circumstances of the case. Miscellaneous Petitions pending, if any, shall stand closed.  No costs.

_________________________

G. KRISHNA MOHAN REDDY, J

Date: 04-01-2013

YCR