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THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No.2941 OF 2013 Dated: 28-04-2014 Smt. Dudekula Asha @ Shaik Asha ... PETITIONER AND Shaik Nasara Vali and three others .. RESPONDENTS ORDER:
THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No.2941 OF 2013 This revision petition is filed aggrieved by the orders dated 18-02-2013 passed in I.A No. 1407 of 2012 in O.S No. 439 of 2008 by the learned III Senior Civil Judge, City Civil Court at Hyderabad, wherein and whereby the application filed by the petitioner to reopen her evidence was dismissed.
The petitioner herein is the 3rd defendant in the suit. The 1st respondent herein filed the suit against respondent Nos.2 to 4 and the petitioner herein seeking cancellation of registered sale deed dated 13-05-2005, for specific performance of agreement of sale dated 31-
01-1994 and for delivery of possession and mesne profits. Defendant Nos.1 and 2 filed written statement and the petitioner – the 3rd defendant also filed her written statement opposing the suit. Earlier defendant Nos.1 and 2 filed I.A No. 1598 of 2010 seeking to reopen the case for adducing further evidence on their side and the 3rd defendant also filed I.A No. 1599 of 2010 to recall PW 1 for further cross examination; however the same were dismissed by the trial Court. Aggrieved by the same, C.R.P Nos. 5730 and 5731 of 2010 were preferred before this Court which were also dismissed. The trial Court commenced trial in the suit and closed the evidence. At that stage, the petitioner – 3rd defendant filed the present application seeking to reopen evidence and give her an opportunity to adduce evidence stating that the matter was posted for the evidence of defendant Nos.1 and 2 and after giving them time, the Court straightaway closed the evidence on the defendant’s side without giving her an opportunity to adduce evidence. The 1st respondent – plaintiff opposed the application stating that the same is not maintainable and that the present application is filed only to protract the litigation. The trial Court considering the material on record dismissed the application holding that the petitioner is not diligent and is moving hand in glove with defendant Nos.1 and 2.
Learned counsel for the petitioner contended that the petitioner filed an affidavit in lieu of chief examination in the month of December, 2010 by serving a copy on the plaintiff’s counsel, but the trial Court has not registered the same on the ground that there is stay of suit granted by this Court in the revision filed by defendant Nos.1 and 2. Hence, it cannot be said that she is not diligent in prosecuting the matter. He further contended that since the suit is for cancellation of sale deed and involves valuable rights of the parties, the trial Court ought to have allowed the application.
Learned counsel for the respondent – plaintiff supported the order passed by the trial Court.
Perused the record.
It is the case of the petitioner that when the matter was listed on 20-07-2010 and 29-07-2010 for the evidence of defendant Nos.1 and 2, adjournment was sought on her behalf. Again the matter was listed before the trial Court on 03-09-3010 but no one appeared on behalf of defendant Nos.1 and 2 and herself. According to her, the matter was coming up for the evidence of defendant Nos.1 and 2 and after closure of evidence on their side, she should have been afforded an opportunity to adduce evidence. It is her further case that only on one occasion there was no representation on her behalf and that she was under the impression that the matter was coming up for the evidence of defendant Nos.1 and 2.
In my considered opinion, since the suit is filed for cancellation of sale deed and for specific performance of agreement of sale and since valuable rights of the parties are involved, the trial Court ought to have given one opportunity to the petitioner to adduce evidence on her behalf. It is pertinent to note that this Court upheld the order passed by the trial Court dismissing the application filed by defendant Nos.1 and 2 to reopen evidence on their side and the application filed by the petitioner to reopen the evidence of PW 1. The petitioner in fact earlier filed an application in December 2010 seeking to reopen the evidence and receive the affidavit in lieu of her chief examination, but the same was not numbered by the trial Court. Therefore, it cannot be said that the petitioner was not diligent in prosecuting the matter.
In view of the above, the impugned order passed by the trial Court is set aside. Consequently, I.A No. 1407 of 2012 stands allowed and the learned III Senior Civil Judge, City Civil Court, Hyderabad is directed to afford one opportunity to the petitioner to adduce evidence on her behalf. It is made clear that in case, the petitioner fails to adduce evidence on the date fixed by the Court, then she shall be forfeited the opportunity to adduce evidence and the evidence on her side will be closed.
The civil revision petition is accordingly allowed. Miscellaneous petitions, if any, pending consideration shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J 28th April, 2014 ks