Grandhi Dharma Rao, v. Chavakula Venkata Subba Raju
HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO C.R.P.No.2317 of 2016 ORDER:
Heard the learned counsel for the petitioner.
2. This Revision Petition is filed challenging the docket order dt.21-04-2016 in I.A.No.292 of 2016 in A.S.No.36 of 2015 passed by the III Additional District Judge, Bhimavaram, West Godavari.
3.
Petitioner herein is the decree holder in O.S.No.24 of 2007 on the file of the Senior Civil Judge, Bhimavaram. He had filed suit for recovery of possession, damages and costs and the suit was decreed on 06-082015. Challenging the same, 1st respondent had filed A.S.No.36 of 2015 before the III Additional District Judge, Bhimavaram.
4.
At the stage when the appellant had addressed arguments in the appeal, petitioner filed I.A.No.292 of 2016 under Order 41 Rule 27 CPC to mark the report of the Amin and the delivery receipt in E.P.No.70 of 2015 under which the property, which is subject matter of the appeal and the suit, was delivered to him. He also wanted mark certified copy of the judgment dt.13-07-2015 in O.S.No.369 of 2010 on the file of the Senior Civil Judge, Bhimavaram which was a suit filed by 1st respondent against the petitioner seeking injunction in respect of the same property.
5.
By docket order dt.21-04-2016, the Court below observed that whether or not to take the additional evidence would be decided while disposing of the appeal A.S.No.36 of 2015 in view of the decisions of this Court in K.Venkatasubba Reddi Vs. Bairagi Ramaiah (died) and his L.Rs.[1] and Bommaku Narsinga Rao and others Vs. The State of Telangana and others[2]. However, it also remarked that "at this stage, the Court has no right to take additional evidence since the petitioner did not file these documents before the trial Court."
6. Aggrieved by the latter part of the order, the petitioner has filed this Revision Petition.
7. Learned counsel for the petitioner contends that the first portion of the order saying that the taking of additional evidence would be decided while disposing of the appeal is contrary to the latter part of the order wherein the Court had predetermined the issue whether or not to take additional evidence.
8. Since the first portion of the order represents the correct legal position and the latter portion of the order is inconsistent with the earlier portion of the order, the order dt.21-04-2016 of the III Additional District Judge, West Godavari District insofar as he observed that "at this stage, the Court has no right to take additional evidence since the petitioner did not file these documents before
the trial Court" cannot be sustained.
9.
Also petitioner could not have filed the documents in the trial Court inasmuch as the suit O.S.No.24 of 2007 was decided on 06-08-2015 and the E.P.No.70 of 2015 in which the petitioner claims that he obtained delivery of the subject property was filed only subsequently. It could also have been difficult for the petitioner to produce certified copy of the order dt.13-072015 in O.S.No.369 of 2010 since the certified copy would not be made available within such a short period to the petitioner.
10. Therefore, the docket order dt.21-04-2016 insofar as the III Additional District Judge observed "at this stage, the Court has no right to take additional evidence since the petitioner did not file these documents before the trial Court" is set aside and the III Additional District Judge, Bheemavaram, West Godavari, is directed to consider and decide I.A.No.292 of 2016 filed in A.S.No.36 of 2015 while dealing with the appeal uninfluenced by the above observations made by him in the docket order dt.21-04-2016.
11. With the above directions, the Civil Revision Petition is disposed of. No costs.
12. As a sequel, the miscellaneous petitions, if any pending, shall stand closed.
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JUSTICE M.S.RAMACHANDRA RAO Date: 01-06-2016 Note:- Issue C.C. in three days.
B/o.
kvr [1] 1999 (3) A.L.T. 210 [2] 2015 (4) A.L.T. 285