N NARASAIAH Vs. N SITAYYA

JUDGEMENT

(1.) This revision has been referred to a Division Bench by Immanent Panduranga Rao J. by order dated 26-2-1991 as he considered that the decision rendered by Kodandaramayya, J. in T.China Panduranga Rao vs. B. Venkatappaiah requires reconsideration. We shall first mention how the point arises and then refer to the conflicting views expressed by the two learned judges.

(2.) The petitioner before us is the plaintiff. The suit-O.S.No. 95 of 1980 - was filed initially in the Court of the District Munsif, Chintalapudi, West Godavary, and was subsequently transferred to the District Munsif's Court, Eluru, and was registered as O.S .No. 23 of 1985. The suit for specific performance was based on an agreement dated 25-11-1975 executed by the first defendant in favour of the plaintiff. The first defendant contended that the suit agreement was got executed by the plaintiff by playing fraud and misrepresentation on him. The third defendant is claiming under an earlier agreement of sale dated 26-5-1975 pursuant to which it is stated that the registered sale deed was executed on 16-7-1980 in favour of defendants 2 and 3. Defendants 2 and 3 contended that they are bonafide purchasers and that, at any rate, without notice of the agreement in favour of the plaintiff. On the basis of the abovesaid pleadings, the Court . framed five issues for consideration which are as follows: "(1) Whether the agreement of sale dated 25-11-1975 is vitiated by fraud and misrepreseatation? (2) Whether the sale of the plaint schedule property to D-2 and D-3 by D-1 is true, valid and binding on the plaintiff? (3) Whether D-2 and D-3 are not bonafide purchasers for value? (4) Whether the plaintiff is entitled for specific performance of the agreement of sale dated 25-11-1975? and (5) To what relief?". The plaintiff examined PWs1 to 6 on his side and closed his evidence on 4-9-1984. Thereafter, the defendants adduced the evidence of DWs 1 to 10 and closed their evidence on 6-8-1990. The suit was then posted for arguments. More than two months after the defendants closed their evidence, the plaintiff filed the present interlocutory application on 10-10-1990 seeking permission to adduce rebuttal evidence under Section 151 CPC. In the saidapplication,the plaintiff merely stated that it has become necessary for him to prove that the evidence adduced by the defendants is false and that he has been advised that he should adduce rebuttal evidence and that, therefore, the Court may grant permission for adducing such rebuttal evidence. The respondents filed a counter-affidavit stating that the evidence on behalf of the plaintiff and the defendants was completed and that the matter was posted for arguments and that the plaintiff has now filed the petition for adducing rebuttal evidence for which he is not entitled and that the petition is, in fact, filed to drag on the proceedings. It is further stated that in the suit, as per the issues, the burden lay on the plaintiff to prove his case and that, in his turn, he had examined himself and several witnesses on his side. After completion of the evidence of the defendants, the present petition is filed and that it deserves to be dismissed.

(3.) The learned District Munsiff referred to the decision of Kodandaramayya, J. in China Panduranga Rao's case (1 supra) which was relied upon for the plaintiff but distinguished the same on the ground that the petitioner had not reserved his right to adduce any rebuttal evidence and that it is not his case that he has not at all adduced any evidence on issues 1 and 2. The Court also observed that the petitioner had, in fact, adduced evidence on issues 1 and 2. The petition was accordingly dismissed. It is against the said order that this revision petition has been filed.