MUSTYALA RAJESHWARI Vs. RAMIDI RAJANNA

JUDGEMENT

(1.) Respondents in I .A. No. 460 of 2003 in O.S. No. 23 of .1995 on the file pf the Senior Civil Judge, 'Peddapalli, had preferred the present Civil Revision Petition, having been aggrieved by the impugned order reopening of the case for further evidence on an application moved by the respondent herein plaintiff in the suit. The learned Senior Civil Judge, Peddapalli on the main ground that the plaintiff was permitted to adduce rebuttal evidence after closure of the evidence of the defendants had thought it fit to give an opportunity and ultimately had allowed the said application without costs.

(2.) Sri Subrahmanyam, learned counsel representing Sri Ashok Raj, learned counsel appearing for he petitioners had drawn the attention of this Court to the proviso to Order XVII, Rule 1 of the Code of Civil Procedure (for brevity, the Code) and had maintained that inasmuch as it is clear that several adjournments had been granted, the question of reopening the matter at a belated stage is impermissible in law on the mere ground that the plaintiff was permitted to adduce rebuttal evidence. The learned counsel would maintain that even if such permission is there, the same should have been exercised within the permissible time available to such a party. The learned Counsel also contended that if any other interpretation is given, it would amount to defeating the very provision introduced by way of Amending Act, Act 46 of 1999. As can be seen from the impugned order, it is no doubt true that the learned Senior Civil Judge at Peddapalli had exercised the discretion and in view of the fact that the plaintiff was permitted to, adduce rebuttal evidence after closure of the defendants' evidence and by inadvertence, the Court instead of giving the opportunity to the plaintiff for adducing further rebuttal evidence straightway posted the matter for arguments and in such circumstances thought it fit to allow the application. Order XVII of the Code deals with adjournments. Sub-section (1) of Rule 1 of Order XVII reads as hereunder :

(3.) It is stated in the affidavit filed in support of the application that a memo was filed by the respondents reserving his right to lead rebuttal evidence and the Court permitted him to lead the rebuttal evidence after closure of the evidence on defendants' side. But, however, the Court without affording such an opportunity to lead further evidence had straightway posted the matter for arguments. It was further stated that the scribe of Ex. A1 has to be examined and in such circumstances, an application to reopen the suit for the purpose of leading further evidence had been thought of. Specific stand was taken into the counter-affidavit filed by the revision petitioners that inasmuch as the plaintiff closed the evidence on 9-1-2003 and posted the matter for defendants' evidence on 24-3-2003 and the defendants' side was closed and the matter was posted to 3-4-2003 and inasmuch as several adjournments had been granted when the matter was posted finally on 25-6-2003 for arguments, there is no question of filing an application to reopen the matter. In substance, the stand taken by the revision petitioners-respondents in the said application is that in view of the specific provisions relating to granting of adjournments specified in the proviso under Order XVII, Rule 1 of the Code, the learned Judge should not have allowed the application on the ground that the plaintiff had reserved the right to adduce rebuttal evidence. It is no doubt true that the proviso specifically says that no such adjournments shall be granted more than three times to a party during hearing of the suit. Though, the docket proceedings are not available before this Court, from the impugned order, it is clear that several adjournments had been granted. It is also true that the respondent who had reserved the right to let in rebuttal evidence was not diligent in moving the application at the appropriate time. However, the fact remains that a memo was filed and the learned Judge also had recorded that the respondent-plaintiff was permitted to let in rebuttal evidence and by inadvertence the matter was straightaway posted for arguments without affording such opportunity to respondent-plaintiff. As can be seen from the peculiar facts, the learned Judge had recorded a specific finding that having permitted and having granted liberty to adduce rebuttal evidence at the appropriate stage, the Court by mistake had posted the matter straightway for arguments. It is fundamental principle that the parry should not suffer due to any bona fide mistake committed by the Court itself. When that being so, the objection taken that such discretion cannot be exercised by the Court in view of the bar imposed by the proviso of Rule 1 of Order XVII of the Code, in my considered opinion, cannot be sustained. In fact, the learned Senior Civil Judge. Peddapalli had recorded cogent and convincing reasons while exercising the discretion and hence, I am of the considered opinion that the impugned order does not suffer from any illegality in the peculiar facts of the case. 4. Accordingly, the Civil Revision Petition shall stand dismissed. No order as to costs. Petition dismissed.