THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION Nos. 1481 AND 5379 OF 2012 Dated:11-07-2014
Between:
M/s. ISPAT Industries Ltd., rep., by its Branch Manager, Hyderabad, registered office at Park Plaza, 71, Mumbai and office D.No.519, 520, 5th Floor, Model House, Punjagutta, Hyderabad ... PETITIONER AND Sri Gopal Agarwal .. RESPONDENT THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION Nos. 1481 AND 5379 OF 2012
COMMON ORDER:
These two revisions arise out of O.S No. 212 of 2002 on the file of the IX Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad. Hence, they are disposed of through a common order.
The petitioner filed the suit against the respondent for recovery of Rs.49,92,927/- in relation to certain business transactions between them. The respondent filed a written statement opposing the suit and the trial commenced. During the course of examination of PW 1, certain suggestions were made on behalf of the respondent with regard to some payments said to have been covered by documents. After the turn of the respondent who adduced his evidence has come, he filed I.A No. 583 of 2011 under Order VIII Rule 1 CPC with a prayer to receiver certain documents. I.A No. 584 of 2011 was filed under Section 65 of the Evidence Act to permit the respondent to adduce secondary evidence in relation to those documents. It was pleaded that the originals are with the petitioner and despite repeated demands, he did not produce them into the Court. Through separate orders, dated 17-02-2012, the trial Court allowed both the applications.
C.R.P No. 1481 of 2012 is filed against the order in I.A No. 583 of 2011.
Stating that I.A No. 583 of 2011 was allowed without their presence and by setting them ex parte, the petitioner filed I.A No. 150 of 2012 under Rule 13 of Order IX CPC, with a prayer to set aside the order dated 17-02-2012. The trial Court dismissed the I.A through order dated 19-03-2012. Hence, C.R.P No. 5379 of 2012 is filed.
Heard Sri K. Gopala Krishna Murthy, learned counsel for the petitioner and Sri Sharad Sanghi, learned counsel for the respondent.
It needs to be seen as to whether the order passed in I.A No. 583 of 2011 is ex parte in nature. A perusal of the order discloses that the petitioner was not set ex parte.
The only observation is that though opportunities were given to them, the petitioner did not file any counter to the I.A.
The trial Court took into account the contents of the application and passed the order. Mere fact that an order was passed in the I.A in the absence of a counter, cannot lead to a presumption that it is ex parte, in nature. Therefore, C.R.P No. 5379 of 2012 is dismissed.
Coming to C.R.P No. 1481 of 2012, it is evident from the affidavit filed in support of I.A No. 583 of 2011 that the documents which were sought to be produced were very much referred to in the written statement and when suggestions were made to PW 1 in relation to those documents, evasive answers were given. Further, it is not a case where the documents were in the custody of the respondent and he did not file them along with the written statement. It is the specific case of the respondent that the originals are with the petitioner and only when they did not come forward to file them, that the I.A was filed, that too together with another application seeking permission to adduce secondary evidence. Therefore, no exception can be taken to the order passed by the trial Court. C.R.P No. 1481 of 2012 is accordingly dismissed.
However, it is left open to the petitioner to file an application to recall PW 1 within 15 days from today, if they want to elaborate upon the documents, which are filed through I.A No. 583 of 2011. Thereafter, the evidence of the defendants shall be recorded.
The miscellaneous petitions filed in these revisions shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J 11h July, 2014 ks