HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.525, 599, 654 and 1643 of 2008 COMMON ORDER: These four civil revision petitions arise out of different interlocutory applications in O.S.No.1035 of 2003 on the file of the Addl. Judge, City Small Causes Court- cum-VI Senior Civil Judge, City Civil Court, Hyderabad. When the trial of the suit was completed and the suit was posted for judgment, the plaintiff filed I.A.No.37 of 2007 for reopening of the suit, I.A.No.151 of 2007 to permit him to file documents and I.A.No.40 of 2007 and I.A.No.41 of 2007 to recall P.W.1 and D.W.1 respectively. Defendants 1, 2 and 5 filed I.A.No.145 of 2007 against the order allowing I.A.No.37 of 2007 on 26.04.2007. I.A.No.37 of 2007 to reopen the matter was allowed on 26.04.2007 which was claimed by the petitioners in I.A.No.145 of 2007 to be without notice to them and without their appearance or hearing them. The plaintiff denied the allegations of defendants 1, 2 and 5 and also contended that I.A.No.145 of 2007 was barred by limitation. She also claimed that copies of I.A.No.37 of 2007 were served on the learned counsel appearing for defendants 1, 2 and 5 before the petition was filed into Court and that after taking time for filing counter, they did not file any counter, on which the petition was allowed. The claim of the plaintiff for filing I.A.Nos.151, 40 and 41 of 2007 is that during pendency of the suit for recovery of possession and damages, the defendants and the plaintiff entered into a compromise under a petition signed by them under Order 23 Rule 3 of the Code of Civil Procedure and the same has to be filed into Court and confronted to P.W.1 and D.W.1. The plaintiff also referred to C.R.P.Nos.1263, 1282 and 1313 of 2006 filed by her before the High Court and in order to record the compromise, she had withdrawn the civil revision petitions reporting that the matter was settled out of Court. The defendants contended that the plaintiff had voluntarily withdrawn the civil revision petitions stating that the matter was settled out of Court, and in I.A.Nos.37, 40 and 41 of 2007, the contents of I.A.No.151 of 2007 were not referred to. By misrepresenting to the Court and without service of copies of other petitions, the plaintiff got I.A.No.37 of 2007 allowed. The defendants further contended that Master Mohd. Feroz, s/o Shaheda Begum was kidnapped in Gulbarga and a false complaint in Crime No.120 of 2004 was given in Kalapathar Police Station. On 18.01.2007 the 5th defendant was taken by force by the plaintiff and police personnel first to the house of the counsel for the plaintiff where the signatures and thumb impressions of the 5th defendant were forcibly obtained on some papers, blank papers and a compromise petition. The defendants, therefore, desired that the document should not be received and the petitions be negatived. All the four petitions were disposed of by the trial Court by separate orders on 18.01.2008. In I.A.No.145 of 2007 the trial Court noted that the suit was posted for judgment on 30.04.2007, while I.A.No.37 of 2007 was allowed on 26.04.2007 posting the matter to 01.05.2007. The trial Court also noted that I.A.No.37 of 2007 was posted for counter and due to the defendants not filing any counter and due to there being no representation for them, the petition was allowed. The trial Court recorded that the plaintiff gave notice to the other parties in the petitions for advancement as well as reopening of the plaintiff’s evidence and when the defendants did not come up with any plea that they were not informed about the date of adjournment and when a petition copy under Order 7 Rule 14 of the Code of Civil Procedure was served on 26.04.2007, the defendants also ought to have verified the Court diary to note the date of adjournment. Refusing to accept the reasons given by the defendants, the trial Court considered I.A.No.145 of 2007 to be beyond the period of limitation of 30 days prescribed by Article 123 of the Limitation Act and negatived the petition. In I.A.No.151 of 2007 the trial Court opined in its order that the provisions of Order 7 Rule 14 of the Code of Civil Procedure provided for filing of documents with a list along with the plaint, but as the compromise deed was not with the plaintiff by the time of the suit, the compromise having been arrived at during pendency of the civil revision petitions before the High Court, the document can be received. The trial Court referred to a precedent from this Court wherein it was held that when a document subsequently came into possession of a party, the same can be received. The reasons shown by the plaintiff for the delay in filing the document were hence considered to be genuine and the trial Court also observed that whether the document was voluntary or was obtained under coercion can be elicited during the evidence of the witnesses and the genuineness of the document can be decided at that stage. Therefore, the document was directed to be received subject to proof and relevancy. In I.A.No.40 of 2007 and I.A.No.41 of 2007, the trial Court felt that recalling of P.W.1 and D.W.1 for the purpose of confronting them with the compromise petition is necessary in the interest of justice and the allegations about the manner in which the document was obtained have to be gone into by recalling the two witnesses and confronting them with the document. The two applications were, consequently, allowed by the trial Court. In these revisions, defendants 1, 2 and 5 firstly contended that without service of any notice of the petition for reopening and without affording an opportunity of hearing to them, the trial Court allowed the application and dismissed the request of the revision petitioners to allow them to contest the application. The revision petitioners also reiterated that the alleged compromise document was obtained by coercion with the background of the offences committed for bringing into existence such document and when the document itself is in question, the petition to receive the same ought not to have been allowed. The document is not in compliance of Order 23 Rule 3 of the Code of Civil Procedure and is inadmissible in evidence for any purpose. The revision petitioners also contended that recalling of P.W.1 and D.W.1 for the purpose of marking such document obtained by coercion, more so when it is the subject matter of Crime No.154 of 2007, is impermissible. The revision petitioners, therefore, requested that all the impugned orders are liable to be set aside and the revisions be allowed. Sri Ali Farooq, learned counsel for the revision petitioners, strenuously reiterated the contentions, while the arguments of Sri A. Srinivasa Rao, learned counsel, representing Sri M.V.S.SureshKumar, learned counsel for the 1st respondent/plaintiff are heard in reply. The point for consideration is whether the impugned orders are vitiated for the reasons stated by the revision petitioners. I.A.No.37 of 2007 to reopen the suit, which was posted for judgment, was allowed on 26.04.2007. The trial Court noted that the suit was originally posted for judgment on 30.04.2007 and even after reopening, it was posted to 01.05.2007 for hearing. The observations of the trial Court that I.A.No.37 of 2007 filed on 25.04.2007 was posted for counter on 26.04.2007 may indicate that copies of the petition must have been served on the opposite parties, after which alone, the Court will post the matter for their counters. The trial Court had, in fact, observed that the plaintiff had given notice to other parties about the advancement application as well as the application for reopening of his evidence. The contentions of the revision petitioners to the contrary about absence of notice to them in I.A.No.37 of 2007 cannot be preferred to the observations of the trial Court based on perusal of the record. Even otherwise, the revision petitioners should have observed what was happening in the suit at least on 30.04.2007 to which date the suit was posted for judgment when the same was admittedly known to them. They did not claim to have taken any interest in knowing why the judgment was not delivered on 30.04.2007 which would have made them know about allowing of I.A.No.37 of 2007. In any event, the affidavit filed in support of I.A.No.145 of 2007 states as to when defendants 1, 2 and 5 came to know about the order passed in I.A.No.37 of 2007. The affidavit itself shows that the plaintiff had, in fact, filed the acknowledgment of service of notice into Court in I.A.No.37 of 2007 which the revision petitioners claimed to have given in acknowledgment of the petition for filing a document which plea was not substantiated during enquiry into the petition by any material. The revision petitioners, in fact, stated about their knowledge about I.A.Nos.40 and 41 of 2007 filed for recalling of P.W.1 and D.W.1 respectively apart from the petition to receive the document, and if they had such knowledge, they would have verified as to what was happening in the suit otherwise. The affidavit filed in support of the petition, which stated about filing of a memo on the same day in I.A.No.37 of 2007 through the counsel about the illegalities of the plaintiff, did not specify on what date such memo was filed into Court. Article 123 of the Limitation Act prescribes a period of limitation of 30 days for filing such a petition from the date of ex parte decree or where the summons or notices was not duly served from the date of knowledge of a decree for the applicant. I.A.No.145 of 2007 filed on 03.09.2007 was beyond 30 days from the date of the order, while there is no material on record to know whether it was within 30 days from the date of knowledge of the order, and therefore the presumption of the trial Court that the petition was beyond limitation is not susceptible to interference in the restricted revisional jurisdiction of this Court, apart from the fact of the claims of the revision petitioners not inspiring judicial confidence in the absence of any material. While the order in I.A.No.145 of 2007, hence cannot be interfered with, interfering with the valuable rights accrued to the plaintiff by the bar of limitation, the order in I.A.No.151 of 2007 is only for receiving the document relating to the alleged compromise subject to proof and relevancy. Order 7 Rule 14 of the Code of Civil Procedure enables any document not filed along with the list accompanying the plaint being received in evidence at the hearing of the suit with leave of the Court. The leave of the Court obviously will be granted on the justification afforded by the facts and circumstances of each case. The alleged compromise was claimed by the plaintiff to have been entered into during pendency of the suit and the civil revision petitions before the High Court. The truth and validity of the alleged compromise are in dispute. If the plaintiff claims it to be voluntary and the defendants claim it to be under coercion under circumstances stated by them, the said questions in controversy between the parties are not the subject matter of I.A.No.151 of 2007 and as rightly observed by the trial Court, they have to be probablised and considered during the trial of the suit or other proceedings in the suit and not herein. Receiving of a document by exercising the judicial discretion conferred by Order 7 Rule 14 of the Code of Civil Procedure cannot be considered incorrect under the circumstances. While the receipt of the document also is beyond any scope for interference herein, recalling of P.W.1 and D.W.1 is sought for not for any purposes covered by their examination earlier but obviously for the purpose of confronting them with the alleged document of compromise. Witnesses of both sides being confronted with the said document of compromise is but essential in the interest of justice to arrive at the truth relating to such compromise, in view of the conflicting claims of the parties, and for the said purpose, it cannot be said that recalling of witnesses is purposeless and impermissible. While all the four impugned orders are hence not open to be interfered herein, it should be reiterated and made clear as already observed by the trial Court that none of these impugned orders or this order is an expression of opinion on the truth or otherwise of the alleged compromise between the parties. The truth, validity, legality and effect of the alleged compromise will have to be a subject of the consideration in the suit, on the basis of the oral and documentary evidence that the parties may produce before the trial Court in this regard. In consequence of receiving the document and recalling P.W.1 and D.W.1, there might be no doubt that the Court shall give every reasonable opportunity to both parties to produce any further evidence also in this regard, if required and requested. Therefore, all the Civil Revision Petitions are dismissed without costs. But none of the observations in the impugned orders or this order shall influence the determination by the trial Court of the question of the truth, validity, legality and effect of the compromise in question which has to be determined on merits in accordance with law by the trial Court after affording every reasonable opportunity to both parties. ____________________ G. BHAVANI PRASAD, J Date: 15.07.2010 CBS HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.525, 599, 654 and 1643 of 2008 (Dismissed) Date:15.07.2010 CBS HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.525, 599, 654, and 1643 of 2008 DATE:15.07.2010 Between: Amjad Ali (Mohd. Amjed Ali) and others … Petitioners And Shaheda Begum @ Rahimunnisa Begum and others … Respondents