IN THE COURT OF HON’BLE PRINCIPAL DISTRICT

JUDGE, KADAPA.
I.A NO OF 2024
in
AS NO 22 OF 2022
in
OS NO 502/2011

Muthukuru Naga Munaiah … Petitioner/ Appellant/

Plaintiff

V/s

1. P. Inthiyaz Khan

2. Pothireddy Subba Reddy … Respondents/ Respondents/

Defendants

COUNTER FILED ON BEHALF OF THE RESPONDENT

No.1 / DEFENDANT No. 1

1. The petition filed by petitioner is neither just nor

maintainable either in law or on facts of the case. The petitioner is
put to strict proof of all allegations made in the affidavit, which are
not specifically admitted herein by this respondent.

2. It is submitted that it is absolutely false to say that father of

the petitioner/ appellant acquired an extent of Ac 0.07½ cents under
a register partition deed dated 26.06.1067 vide document No.
2481/1967. It is also false to say that M. Venkata Subbaiah had
been in continuous possession and enjoyment of the property. It is
equally false to say that after the death of M. Venkata Subbaiah, his
wife and daughter, succeeded to an extent 261.31 Sq, Yards. It is
absolutely false to say that mother of the petitioner got rights to an
extent of 364.75 Sq. yards and executed Exhibit A1. The petitioner
suppressed the facts and not filed the present petition with clean
hands.

3. it is submitted that as seen from the Exhibit A1, it is

mentioned that mother of the appellant by name M. Venkata
Subbamma, executed gift deed in favor of the appellant covering to
an extent of 364.75 sq. yards. Hence, it is obligatory on the part of
the appellant to prove that her mother got right and title to an extent
of 364.75 sq. yards. However as seen from the link document to
Exhibit A1, i.e., Exhibit B1 it is clearly mentioned that M. Venkata
Subbamma got right in title to an extent of 103.44 Sq. yards only.
How, she got right to the extent of 364.75 Sq. yards in not all
mentioned in Exhibit A1. As seen from recitals of ExA1, there is no
reference with regard to the alleged partition dated 26.06.1967
which is now sought to be produced by appellant as additional
evidence at appellate stage. As seen from the recitals of the
partition deed dated 26.06.1967 vide A schedule, the father of
appellant i.e., M. Venkata Subbaiah, is alleged to have got an
extent Ac 0.10 cents or 0.040 hectors is survey No. 520-2 of
Chemmummiyapet village fields, whereas, as seen from the
affidavit filed by appellant, it is asserted that father of the appellant
acquired an extent of Ac 0.07 cents, as such, there is difference in
extent of property alleged to have acquired by the father of
appellant. As seen from the recitals of the partition deed, the extent
of the property is at variance with the facts pleaded in the affidavit.
It shows that the appellant is not clear with regard to extent of the
property owned by his father. The appellant has miserably failed to
show the reasons why his counsel why did not file the document
before the trial court. By simply throwing blame on his counsel does
not amount to “sufficient reason” with-in the parameters of law.
Under Order 41 Rule 27 CPC envisages that unless the party
seeking to produce additional evidence establishes that not-with-
standing the exercise of due diligence, such evidence was not
within his knowledge or could not, after the exercise of due
diligence, be produced by him at the time when decree was passed
against the appellant. In the case on hand, the affidavit given by
appellant, did not disclose any exercise of due diligence in such the
facts narrated by appellant not satisfy the requirements of Order 41
Rule 27 of CPC. The appellant has miserably failed as to when he
handed over the document to his previous counsel and he did not
disclose whether it is original document or certified copy etc., The
appellant has also not disclosed the custodian of the document.
Viewed from any angle there is no foundation in the pleadings
redied upon by the appellant throughout the proceedings in trial
court and at fog end of the matter, the appellant came up with
present petition without showing adequate reasons, without any
bonafides on his behalf and filed present petition with such in
ordinate delay without any cogent reasons. Hence, there is no merit
in present petition consequently the petition is liable to be dismissed
in law.
 4. It is further submitted that, the Hon’ble Supreme Court in
“Appeal(civil) 458 of 2007” ruled that appellate Court should not
pass an order so as to patch up the weakness of the evidence of
the unsuccessful party in the trial court. In another citation reported
in “Civil appeal No. 1374 of 2008 Union of India V/s Ibrahim Uddin
and another”, the Hon’ble Apex Court observed that an appellate
Court should not entertain additional evidence and should pass the
judgement basing on record available from lower court. However, it
is further observed Order 41 Rule 27 CPC permits additional
evidence in exceptional circumstances when appellate Court find it
necessary for pronouncing a satisfactory judgement, and that the
provision is discretion and should be exercised sparingly, and that
the Court must ensure that additional evidence is essential in
resolving matter justly. The observation of Hon’ble Supreme Court
in above said citations are clearly applicable to the facts of the
present case.

5. Therefore, it is prayed, this Hon’ble Court may be pleased

to dismiss the present petition with exemplary costs, in the interest
of justice.

VERIFICATION

The facts stated above are true and correct to the best of my
knowledge belief and information and I signed this on July of
2024 at Kadapa.

Advocate for the Respondent no. 1/ Defendant 1

IN THE COURT OF HON’BLE
PRINCIPAL DISTRICT JUDGE,
KADAPA.

I.A NO OF 2024
in
AS NO 22 OF 2022
in
OS NO 502/2011
Muthukuru Naga Munaiah

… Petitioner/ Appellant/

Plaintiff

V/s

1. P. Inthiyaz Khan

2. Pothireddy Subba Reddy

… Respondents/

Defendants

COUNTER FILED ON
BEHALF OF
RESPONDENT No.1 /
DEFENDANT No.1

Filed by: -