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Andhra High Court · body

2009 DIGILAW 237 (AP)

A. Lakshmi Devi v. C. Sudhakar Reddy

2009-04-06

P.S.NARAYANA

body2009
Judgment : Common Order: These Civil Revision Petitions are filed by the unsuccessful petitioners/defendants being aggrieved of the orders made in I.A.No.1446/2008 and I.A.No.1447/2008 in O.S.No.531/2007 on the file of Senior Civil Judge, Kurnool. 2. The petitioners filed I.A.No.1446/2008 under Section 151 of the Code of Civil Procedure (hereinafter in short referred to as “Code” for the purpose of convenience) to reopen the plaintiff’s evidence and to recall P.W.1 to P.W.3 for further cross-examination. Likewise, I.A.No.1447/2008 was filed by the petitioners/defendants to recall P.W.1 to P.W.3 for further cross-examination. The learned Principal Senior Civil Judge, Kurnool after referring to the respective stands taken by the parties in brief, formulated the following Point for consideration at para-3 : Whether the petitioners made out a case to reopen plaintiff’s side to recall P.W.1 to P.W.3 for further cross-examination ?. The learned Judge recorded certain reasons at para-6 and ultimately dismissed the said applications. Aggrieved by the same, these Civil Revision Petitions had been preferred under Article 227 of the Constitution of India. 3. Sri Subrahmanyam Kurella, the learned Counsel representing the Revision Petitioners in these Civil Revision Petitions would maintain that the learned Judge should have appreciated the fact that in the facts and circumstances of the case, it would be just and necessary to reopen the plaintiff’s evidence and also to further cross-examine P.W.1 to P.W.3. The learned Counsel also would person that the learned Judge ought to have appreciated that on crucial aspects when further P.W.1 to P.W.3 to be cross-examined, the disclosure of such crucial aspects would cause lot of prejudice to the petitioners. The Counsel also had taken this Court through certain dates and would maintain that absolutely there was no delay on the part of the Revision Petitioners and they had been prosecuting the litigation with all diligence and this aspect also to be taken into consideration and due opportunity to be given to the Revision Petitioners. 4. The Counsel also had taken this Court through certain dates and would maintain that absolutely there was no delay on the part of the Revision Petitioners and they had been prosecuting the litigation with all diligence and this aspect also to be taken into consideration and due opportunity to be given to the Revision Petitioners. 4. On the contrary Sri B.Vijay Bhaskar, the learned Counsel representing the respondent in both these Civil Revision Petitions would maintain that the learned Judge dismissed these applications on the ground that no reasons as such had been furnished in the respective affidavits filed in support of the applications and the object of filing these applications is only to protract the suit and inasmuch as the view is to delay the proceedings, it may not be just to allow the applications and accordingly dismissed both the applications. The Counsel also would maintain that in the light of the convincing reasons recorded by the learned Judge, these are not the matters to be interfered with under Article 227 of the Constitution of India. The learned Counsel also relied upon certain decisions to substantiate his submissions. 5. Heard the Counsel on record, perused the impugned Order in these Civil Revision Petitions. 6. In the light of the submissions made by the Counsel on record, the following Points arise for consideration in these Civil Revision Petitions: 1. Whether the dismissal of the applications filed by the Revision Petitioners by the learned Principal Senior Civil Judge, Kurnool can be said to be just and proper in the facts and circumstances of the case? 2. If so to what relief the parties would be entitled to? 7. Point No.1: These Civil Revision Petitions had been preferred by the Revision Petitioners/defendants 1 to 3 against the order made in I.A.Nos.1446 and 1447/2008 in O.S.No.537/2007 on the file of Principal Senior Civil Judge, Kurnool and these applications were filed to reopen the plaintiff’s side and also to recall P.W.1 to P.W.3 for the purpose of further cross-examination. After narrating certain facts in the respective affidavits filed in support of the applications, the petitioners prayed for reopening of the matter and also for recalling P.W.1 to P.W.3 for further cross-examination. Except stating that on certain material aspects P.W.1 to P.W.3 to be respondent cross-examined, no details or particulars had been furnished. After narrating certain facts in the respective affidavits filed in support of the applications, the petitioners prayed for reopening of the matter and also for recalling P.W.1 to P.W.3 for further cross-examination. Except stating that on certain material aspects P.W.1 to P.W.3 to be respondent cross-examined, no details or particulars had been furnished. The stand taken is that if such details or if material questions are to be furnished, the respondent/plaintiff may take advantage of the same and the very purpose of recalling of the witnesses in a way may be frustrated. 8. In Nagumothu Sriharinath Vs. Nagumothu Vani 1997(5) ALT 209 , the learned Judge of this Court at paras 4 and 5 observed: “By a reading of the above provision, it is apparent that when the Court feels necessity at any stage of the trial to call for the witness already examined, it can put such questions to him as the Court thinks fit. But, in the present situation, it is altogether different wherein the petitioner seeks to recall P.W.1 for further cross-examination on the ground that his Counsel at the time of cross-examination was not properly briefed. This is not the criteria laid down for recalling of a witness; but, in practice, it is not denied that the court has always permitted at the instance of parties for recalling of witness for further cross examination/cross-examination subject to the facts and circumstances of the case. In this case, the reason assigned for recalling the witness for further cross-examination being that of not briefing properly the counsel at the time of cross-examination of P.W.1, cannot be accepted as a ground for recalling of the witness for further cross-examination. However, this order will not in any way affect the production or otherwise of the evidence of the petitioner-defendant”. 9. In Allumalla Kannam Naidu Vs. Smt.Allumalla Simhachalam AIR 2003 A.P. 239 it was observed : “The learned Principal Junior Civil Judge, Vizianagaram had arrived at a conclusion that these reasons are not sufficient reasons for ordering of recall of a witness and had ultimately dismissed the application. In Nagumothu Sriharinath’s case ( 1997(5) ALT 209 ) (supra), where the ground raised for recalling a witness as that the Counsel did not put certain material questions to witness when he was cross-examined. It was held to be not a relevant ground for granting permission. In Nagumothu Sriharinath’s case ( 1997(5) ALT 209 ) (supra), where the ground raised for recalling a witness as that the Counsel did not put certain material questions to witness when he was cross-examined. It was held to be not a relevant ground for granting permission. No doubt, the learned Principal Junior Civil Judge, Vizianagaram at para No.8 of the order had placed strong reliance on the decision of Nagumothu Sriharinath’s case ( 1997(5) ALT 209 ) supra and had dismissed the said application. In Panthdam Brahmam’s case ( 1997(2) ALT 652 ) (supra) it was held that under Order 18, Rule 17 of the Code, the Court is competent to recall a witness for further examination not only suo motu but also on a petition filed by either party. In Saleh Bin Omer’s case ( AIR 1966 A.P. 295 ) (supra) this Court while dealing with the aspect of recalling a witness held that the Court can suo motu or at instance of party, recall witness and put questions to him and ordinarily no cross-examination is allowed upon answer without leave of Court and an opportunity to party to recall witness for examination, cross-examination or re-examination cannot be said to be governed by Order 18, Rule 17 of the Code and if circumstances warrant, Court can grant such opportunity under Section 151 of the Code. In Shankara Bhat’s (AIR 1974 Kant.123) (supra) it was held that the right to put question to the witness under Order 18, Rule 17 is not restricted to action of its own motion and it can recall a witness at the instance of the party. The same view was expressed in Madhubhai Amthalal Vs. Amthalal Nanalal, AIR 1947 Bombay 156. In the present case as the application is moved by the party under Order 18, Rule 17 of the Code for recalling a witness, it is one thing to say that the application is maintainable and it is yet another thing to decide whether in the facts and circumstances of the case such application has to be allowed or not. There is no serious controversy between the parties on the maintainability of the application and the application even at the instance of the party can be maintainable under Order 18, Rule 17 of the Code depending upon the facts and circumstances of a particular case. There is no serious controversy between the parties on the maintainability of the application and the application even at the instance of the party can be maintainable under Order 18, Rule 17 of the Code depending upon the facts and circumstances of a particular case. However, in the present case as can be seen from the averments made in the affidavit filed in support of the application except making a bald statement of omission to put some crucial questions, absolutely there are no convincing reasons at all and on the strength of such an affidavit filed in support of the application, I am of the considered opinion that recalling of a witness cannot be ordered and in this view of the matter, absolutely there is no illegality committed by the learned Principal Junior Civil Judge, Vizianagaram in making the said order. There is no error in exercise of jurisdiction by the learned Principal Junior Civil Judge, Vizianagaram and hence, there are no merits in the present civil revision petition and accordingly the Civil Revision Petition is dismissed. No costs.” 10. This Court had given anxious consideration to the respective stands taken by the parties and the averments made in the affidavits in support of these applications as well. This Court is of the considered opinion that since no convincing reasons as such had been furnished in these affidavits filed in support of the applications, inasmuch as the learned Principal Senior Civil Judge, Kurnool was satisfied that these applications are thought of only with a view to further delay the proceedings, this Court does not see any reason whatsoever to interfere with the orders under challenge in these Civil Revision Petitions. 11. Point No.2: In the result, especially inasmuch as these Civil Revision Petitions had been preferred under Article 227 of the Constitution of India and in view of the fact that there is no serious legal infirmity in the orders under challenge, this Court is not inclined to interfere with the said orders and accordingly these Civil Revision Petitions being devoid of merit, shall stand dismissed. No costs.