DATLA SUBHADRAYAMMA Vs. GOLUSU NARAYANA MURTHY

JUDGEMENT

(1.) This revision petition is filed against the order in I.A.No.305/1996 in O.S. No.26/1988 on the file of Subordinate Judge, Chodavaram, dated 21-2-1997, dismissing the petition filed under Section 151 of the Code of Civil Procedure to reopen the suit to enable the revision petitioner-plaintiff to file the Will Deed on which the suit is based.

(2.) The facts and circumstances giving rise to this revision petition are that she filed a suit for recovery of rent claiming that the property originally belonged to her father and that he bequeathed the same in her favour under a Will. The suit is being resisted by the respondent-defendant, who is contesting the Will. The revision petitioner closed her evidence on 19-6-1995 and thereafter the respondent closed his evidence on 18-9-1995 and arguments were also addressed. When the matter was at the stage of reply arguments of the revision petitioner, this petition has been filed stating that the aforesaid Will was filed in O.S.No.231/1988 on the file of District Munsif, Narsipatnam, and hence it could not be filed in this suit (O.S.No.26/ 1988). It is further stated that the above Will was referred to an Expert at the instance of the respondent in I.A.No.35/1994 in O.S. No.38/1989 on the file of Subordinate Judge, Chodavaram, for his opinion on 24-6-1994 and subsequently that Will was received together with the opinion of the Expert. Hence, she filed this petition seeking reopening of the suit to enable her to file the Will. The petition was resisted by the respondent by filing a counter. The material averments are denied. It is asserted that the respondent filed his written statement as long back as in 1988 and that both parties had closed their evidence in 1995 and the suit has been coming up for arguments since January, 1996 and it was posted for reply of the revision petitioner on 19-12-1996. It is asserted that the revision petitioner wilfully failed to produce the document to prove her title though it was available with her at all times and hence this petition is meant for filling up the lacunae in her case and it is not permissible to reopen the suit to enable the revision petitioner to produce her evidence at the stage of reply arguments.

(3.) No evidence was adduced by both the parties. On a consideration of the rival contentions, the learned Subordinate Judge retraced the history of litigation and held that in spite of two specific issues viz., issue No. 1, which relates to the title of the revision petitioner, and issue No.5, which relates to the maintainability of the suit for want of succession certificate, the revision petitioner did not choose to move her little finger to produce the alleged Will. It is further held that there are no tenable or justifiable reasons for the failure of the revision petitioner to produce the Will which is supported to be in her custody only. Thus, he dismissed the petition with costs.