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CASE NO.: Appeal (civil)  187 of 2008

PETITIONER: K.S. Krishna Sarma

RESPONDENT: Kifayat Ali

DATE OF JUDGMENT: 09/01/2008

BENCH: Dr. Arijit Pasayat & P. Sathasivam  

JUDGMENT: JUDGMENT (Arising out of SLP (C) No. 24776 OF 2005)

P. Sathasivam, J.

1)      Leave granted.  

2)      This appeal is directed against the order dated   13.09.2005 passed by the learned single Judge of the High  Court of Andhra Pradesh in C.R.P. No. 3360 of 2005 in and by  which the learned Judge upheld the order dated 24.02.2005 of  the Xth Additional Chief Judge (Fast Track Court), City Civil  Court, Hyderabad in O.S. No. 296 of 1982. 3)      Brief facts in nutshell are: The first defendant in O.S. No. 296 of 1982 on the file of the  Xth Additional Chief Judge (Fast Track Court), City Civil  Court, Hyderabad is the appellant in the present appeal.  The  respondent herein was the plaintiff in that suit.  In respect of  the agricultural land measuring Acs. 32.00 covering Survey  Nos. 141, 142 and 143 and buildings belonging to one late  Salarjung, the plaintiff filed the said suit for declaration of title  and for consequential possession.  The Suit was filed originally  against K.S. Krishna Sarma, the appellant herein, and one  Seshachalapathi as defendants.  During the pendency of the  suit, Seshachalapathi died and his legal representatives were  sought to be brought on record in I.A. No. 189 of 1983.   Among the legal representatives, one Smt. A. Annapurna,  daughter of late Seshachalapathi, was not brought on record  since the application to bring her on record came to be  dismissed due to non-payment of process fee.  Other legal  representatives were brought on record.  The suit was resisted  by filing written statements by 1st and 4th defendants.  Finally,  the suit was decreed in favour of the plaintiff.  The appeal was  filed before the High Court at the instance of defendant Nos. 1,  2 & 4.  Learned single Judge of the High Court, after finding  that in the absence of Smt. A. Annapurna, one of the legal  representatives, the decree was defective, allowed the appeal  and remanded the matter to the trial Court with a direction to  permit Smt. A. Annapurna to come on record.  The said order  of the learned single Judge was challenged by the plaintiff by  filing L.P.A. No. 27 of 1997 before the Division Bench of the  High Court.  The Division Bench set aside the order of the  learned single Judge and remitted the matter to the learned  single Judge with a direction to re-hear the matter insofar as  respondent No.8 is concerned who was transposed as  appellant No.3 and consider the validity of the decree passed  during the absence of respondent No.8 amongst other matters  on merits.   Thereafter, the matter was heard by learned single  Judge and by order dated 07.03.2000, the learned single

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Judge set aside the judgment and decree of the trial Court and  remanded the matter for de novo enquiry with a direction to  permit Smt. A. Annapurna to come on record and to consider  her written statement.  In an application for clarification, i.e.   C.M.P. No. 22134 of 2000, it was clarified that there is no need  to record the entire evidence afresh, but Smt. A. Annapurna  should be permitted to come on record and file her written  statement and decide the matter insofar as her interest is  concerned.  After the said clarification, Smt. A. Annapurna  was added as a party and she also filed her written statement.   PW-1 was recalled and re-examined.  DW-1 sought to file an  additional affidavit in lieu of chief-examination introducing  many documents.  The learned trial Judge directed the  defendants to restrict themselves relating to the right of   Smt. A. Annapurna over the suit scheduled property for the  purpose of leading evidence and saying so returned the  additional affidavit filed by DW-1 with a direction to file a fresh  affidavit confining to the right of the 8th defendant as per the  direction of the High Court.  The said order dated 24.02.2005  of the Xth Additional Chief Judge was challenged by way of  C.R.P. No. 3360 of 2005 before the High Court under Art. 227  of the Constitution of India.  The learned single Judge, in the  light of the earlier orders, particularly, order dated 5.7.2001  clarifying earlier order dated 07.03.2000, dismissed the  revision in limine and upheld the order of the trial Judge.   Questioning the said order, the 1st defendant has filed the  present appeal after getting leave from this Court. 4)      Heard learned counsel for both the parties.       5)      The only point for consideration in this appeal is whether  the appellant-1st defendant is entitled to lead evidence in  respect of all issues including additional issues afresh or to be  confined only in respect of 8th defendant who was  subsequently impleaded on the orders of the High Court? 6)      Though learned counsel for the appellant strenuously  contended that after remand and after framing additional  issues, the appellant is entitled to lead fresh evidence, in view  of clarificatory order dated 5.7.2001 in Civil Misc. Petition No.  22134 of 2000 in C.C.C.A. No. 94 of 1987, it is open to the  parties to lead evidence only in respect of the defence taken in  the written statement of newly impleaded defendant.  After  allowing Smt. A. Annapurna to come on record and to file her  written statement, it is but proper for the parties to lead  evidence only in respect of the stand taken in the written  statement filed by her.  It is worthwhile to refer the  clarificatory order dated 5.7.2001 of the learned single Judge  which reads as under:       \023It is brought to my notice by Sri B. Ramamohan  Reddy, learned counsel that the Trial Court is under the  impression that the entire evidence has to be recorded  afresh.  It is clarified that the trial Court need not record the  entire evidence afresh but permit the said Annapurna to  come on record and file her written statement and decide the  matter in so far as her interests are concerned.             The petition is accordingly disposed of.\024                      It is clear that there is no need to record the evidence afresh in  respect of all issues and the direction was to permit Smt. A.  Annapurna to come on record, file her written statement and  decide the matter based on her claim as well as other  materials which were on record.  As a matter of fact, after  remand and after impleadment of 8th defendant, PW-1  confined himself to the case as against the 8th defendant.  In

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view of the same, as rightly observed by the learned single  Judge of the High Court, the 1st defendant cannot be  permitted to lead evidence afresh on other issues.  We are  satisfied that the learned trial Judge as well the learned single  Judge of the High Court  correctly understood the earlier  orders including the clarificatory order dated 5.7.2001 and  rightly issued direction to the 1st defendant to confine himself  to the defence taken in the written statement of the 8th  defendant. We reiterate and clarify that the parties are at  liberty to lead fresh evidence only in respect of defence/stand  taken by the newly impleaded 8th defendant (Smt. A.  Annapurna) in her written statement. 7)      With the above clarification, the appeal is disposed of.   No costs.