HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.R.P.No.2654 of 2014 Date : 18-10-2014 Between:
D. Kondal Reddy ..
Petitioner And D. Dashrath Reddy and others .. Respondents Counsel for petitioner : Sri N. Praveen Reddy Counsel for respondent No.1 : Sri Venkat Reddy Thipparthi Counsel for respondent Nos.2 & 3 : None appeared The Court made the following :
ORDER:
This Civil Revision Petition arises out of order dated 18-7-2014 in I.A.No.491 of 2014 in A.S.No.26 of 2013 on the file of the learned Additional District Judge, Vikarabad, Ranga Reddy District, whereby she has dismissed the said I.A. filed under Order XLI Rule 27 CPC for adducing additional evidence.
The petitioner, who was defendant No.1 in O.S.No.17 of 2001 on the file of the learned Senior Civil Judge, Vikarabad, has filed the above mentioned appeal feeling aggrieved by the preliminary decree passed by the trial court for partition. It is the pleaded case of the appellant that the suit property was self-acquired property. The petitioner filed the above mentioned I.A. for proving that he had independent source of income through running a kirana shop and that for this purpose he wants to file the proceedings of the Assistant Commercial Tax Officer, Tandur in relation to the said kirana shop. The lower appellate Court dismissed the said application. It has observed that the petitioner has not denied the plea of the respondent that the same document was filed before the trial Court though not marked and that therefore the requirements of Rule 27 of Order XLI CPC were not satisfied. The lower appellate Court further observed that the petitioner did not take any plea before the trial Court that he was running a kirana shop styled as ‘Venkateswara Kirana Stores’.
As regards the purported filing of the document by the petitioner in the trial Court, the learned Counsel for the respondent No.1 is unable to state whether he has filed any proof in support of his plea that the petitioner has filed such a document before the trial Court. In the absence of verification of availability of such document, the lower appellate Court ought not to have readily accepted the plea of respondent No.1 that the document in question was filed before the trial Court but the same was not marked. Even assuming that such a document was already filed by the petitioner/appellant and the same was not marked, it is all the more a reason why the lower appellate Court ought to have marked the said document in evidence.
As regards the observation that the petitioner did not raise any plea before the trial Court that he was running kirana shop styled ‘Venkateswara Kirana Stores’, in para-2 of the written statement, the petitioner has clearly stated as under :
“ … The defendant No.1 who opened a kirana shop at Vikarabad near Ananthagiri Chowrasta with his assistance and on his advise only he purchased the suit lands by paying the amount in instalments to the land lords in the year 1963 which was provided by him and his father-in-law Sri Manmohan Reddy… ”
The above reproduced pleadings would clearly show that the petitioner made a substantive averment that he was running a kirana shop and that he was paying the money to the landlord in instalments. The petitioner raised this plea to substantiate his stand that the suit lands are his self- acquired and personal properties. The petitioner may not have specified the name of the kirana shop. The purpose for which the petitioner sought to file the proceedings of the Assistant Commercial Tax Officer is to establish that he had independent source of income through running of a kirana shop. Therefore, the name of the kirana shop hardly has any relevance in establishing this plea. The lower appellate Court therefore completely misdirected itself in rendering a finding that the petitioner has not raised the relevant plea.
Under Order XLI Rule 27 CPC, a fair amount of discretion is vested in the appellate Court to permit the parties to adduce oral evidence. Such a discretion, if exercised on hyper technical grounds, will result in miscarriage of justice. In my opinion, the lower appellate Court ought to have allowed the application of the petitioner, subject to proof and relevancy.
For the above mentioned reasons, the order of the lower appellate Court is set-aside. I.A.No.491 of 2014 is allowed, subject to proof and relevancy. The lower appellate Court, if it feels fit, may direct the trial Court to record the evidence of both the parties with respect to the additional evidence produced by the petitioner.
The Civil Revision Petition is accordingly allowed.
As a sequel to the disposal of the Civil Revision Petition, interim order dated 3-9-2014 is vacated and CRPMP No.3695 of 2014 is disposed of as infructuous.
Justice C.V. Nagarjuna Reddy Date : 18-10-2014 AM