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2003 DIGILAW 401 (AP)

Indian Airlines Corporation v. Late Duba Mohan

2003-03-11

V.ESWARAIAH

body2003
( 1 ) THE petitioners herein are the defendants in the suit O. S. No. 137 of 1997 on the file of the III Additional Judge, City civil Court, Hyderabad, filed by the respondents herein for granting damages by awarding Rs. 4,00,000/- to the first plaintiff and Rs. 2,00,000/- to the 2nd plaintiff along with interest. ( 2 ) THE case of the plaintiffs is that they have purchased tickets from the Indian airlines, which was confirmed for travel from Hyderabad to New Delhi on 5-5-1985 to fulfil the plaintiffs professional engagement in the Supreme Court. The plaintiffs arrived at Hyderabad Airport at 7. 10 a. m. , on 5-5-1985 and joined the array of passengers at the open check-in counter. But the 2nd defendant neglected arid dodged to receive the confirmed air tickets from the plaintiffs for a while and having received the same passed them to the 3rd defendant. The 3rd defendant appeared to be processing the plaintiffs tickets to issue boarding passes changed his mind and endorsed reported at 7. 30 a. m. , more so on the tickets and returned them to the plaintiffs and he went to the other side of the counter meant for wait listed passengers and started issuing boarding passes to the other passengers. The 3rd defendant bluntly refused to issue boarding passes to the plaintiffs saying that he would not prepared to accommodate them and that they may report the same to whomsoever they want. Thereupon, the plaintiffs met the 4th defendant, the duty officer and requested him to accommodate them in the flight to enable them to attend their professional engagement at New Delhi. But he declined to help the plaintiffs. It is stated that defendants 2 to 4 subjected the plaintiffs in an undignified and indecent manner by causing wrongful loss to the plaintiffs by falsely endorsing the time on the plaintiffs tickets. As a result, the plaintiffs could not keep up their professional engagement incurring wrath and displeasure to their clients. Hence, they filed the said suit for damages after issuing notice. ( 3 ) IT is stated that after completion of pleadings and framing of issues, the trial court has started the case and posted the same on 23-6-1999 for further evidence on the defendant side and D. W. 2 was examined in chief. Hence, they filed the said suit for damages after issuing notice. ( 3 ) IT is stated that after completion of pleadings and framing of issues, the trial court has started the case and posted the same on 23-6-1999 for further evidence on the defendant side and D. W. 2 was examined in chief. On that day the senior counsel for he plaintiffs was held up in this court and the junior counsel requested time for cross-examination. The trial court recorded cross-examination on the plaintiff side as nil and posted the matter to 9-7-1999 for arguments. It is stated that the cross-examination of D. W. 2 is necessary to elicit the true facts of the case. Accordingly, the plaintiffs filed I. A. No. 1592 of 1999 under Order 18 Rule 17 CPC to recall d. W. 2 for the purpose of cross-examination of the said witness. ( 4 ) A counter has been filed on behalf of the defendants stating that when the matter was posted on 16-6-1999 for defendant evidence, D. W. 1 was examined in chief on 16-6-1999 and there was no representation on behalf of the plaintiff and, therefore, the court below recorded cross-examination of plaintiff side as nil and posted for further evidence of the defendant on 23-6-1999. On 23-6-1999, D. W. 2 was examined and there was no representation on behalf of the plaintiffs. After completing the D. W. 2 s chief examination, the trial court called the plaintiff to cross-examine him. But the junior counsel represented that the senior counsel appearing for the plaintiffs was held up in this Court and then the trial court recorded the cross-examination on plaintiffs side as nil and posted the matter for arguments to 9-7-1999. After closing the evidence, they have filed a petition to recall d. W. 1 only but they have not filed any application for D. W. 2 also. The same was allowed on payment of Rs. 100/- towards costs. After completing the cross- examination of D. W. 1, the present application was filed to recall D. W. 2, who is defendant No. 3 in the suit, who was retired from service long back on 28-2-1990 and they are under impression that the plaintiffs are not going to file such an application to recall D. W. 2 as he was retired on 28-2-1990 from service. In spite of it as he was available in Hyderabad, he appeared before the court on 23-6-1999. But the plaintiffs have not availed the opportunity to cross-examine him. Because of his ill health they understand that D. W. 2 left for U. S. A. and they do not know his whereabouts in U. S. A. ( 5 ) THE court below after considering the rival contentions allowed the said application on 11-2-2000 on payment of rs. 500/- towards costs and posted the case on 25-2-2000 for cross-examination of d. W. 2. It is stated that D. W. 2 is a party to the suit and is not a third party witness and he cannot avoid to attend the court making himself available for the cross-examination. The court below observed that the junior counsel for the plaintiffs requested time to cross-examine D. W. 2 on the ground that the senior counsel for the plaintiff was held up in this Court. It is further observed that the petitioners herein/defendants have not produced any proof about the non- availability of D. W. 2 in India and about his living at U. S. A. D. W. 2 is no other than a party to the proceedings and he is D-3 in the suit and they cannot say that it is not possible to produce him before the court. Questioning the said order for recalling d. W. 2, the petitioners filed this revision petition. ( 6 ) IT is curious to note that the revision petition is filed on behalf of 3rd defendant in the suit, namely, M. K. Ahmed. The first defendant in the suit is Indian Airlines corporation represented by its Vice chairman and Managing Director. The 2nd defenant is M. Venkataramana, Traffic superintendent in Indian Airlines corporation. 3rd defendant is M. K. Ahmed, traffic Superintendent, Hyderabad Airport and the 4th defendant is K. Ramakrishna rao, Traffic Officer, Hyderabad Airport. The vakalat was filed on behalf of the 4th petitioner and it was signed by only one person i. e. , Station Manager, Indian Airlines ltd. , who is not the defendant in the suit. The first petitioner and petitioners 2 to 4 are impleaded in the suit by name. The affidavit filed in this Court is by one Sudhir paul as Station Manager of the first petitioner Corporation. , who is not the defendant in the suit. The first petitioner and petitioners 2 to 4 are impleaded in the suit by name. The affidavit filed in this Court is by one Sudhir paul as Station Manager of the first petitioner Corporation. It is not stated that he was authorized to file the revision petition on behalf of other petitioners. No vakalat has been filed by any of the petitioners. Therefore, the revision petition is not maintainable on behalf of the petitioners 2 to 4. Accordingly, the revision petition is dismissed against petitioners 2 to 4. So far as the first petitioner is concerned, it cannot take objection for recalling the 3rd petitioner or D. W. 2 as observed by the court below. There is nothing on record to show that he was not available at hyderabad when the order passed by the court below on 11-2-2000. The court below allowed the said application of the respondents herein and posted the matter on 25-2-2000. It is stated that the costs rs. 500/- was paid. But the 3rd defendant has not attended the court for cross- examination of the plaintiffs. ( 7 ) IT is contended by the learned counsel for the petitioners that under Order 5 rule 4 CPC no party shall be ordered to appear in person unless he resides within the jurisdiction of the court. Order V CPC deals with the issue and service of summons to the parties. In the instant case, summons was already served on the defendants including D. W. 2 and he was examined in chief. When once he entered his appearance as party to the suit, he cannot take such defence that he is not residing within the jurisdiction of the court. The learned counsel for the petitioners further states that under Order 16 Rule 19 cpc that the court cannot order the person to attend the court to give evidence unless he resides within the local limits of the court s jurisdiction. Order 16 CPC deals with summoning and attendance of witnesses. D-3 is a party witness but not a third party witness. He was served with notice and he appeared before the court. Merely because he is said to have left for u. S. A. , it cannot be said that he cannot be recalled. Order 16 CPC deals with summoning and attendance of witnesses. D-3 is a party witness but not a third party witness. He was served with notice and he appeared before the court. Merely because he is said to have left for u. S. A. , it cannot be said that he cannot be recalled. Under Order 18 Rule 17 CPC the court may at any stage recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the court thinks fit. The Court below, under order 18 Rule 17 CPC, rightly allowed the said application. I do not see any illegality or irregularity in allowing the said application to recall D. W. 2 for cross- examination by the plaintiffs. The civil revision petition is misconceived and without merits and the same is, accordingly, dismissed with costs.