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Andhra High Court · body

2012 DIGILAW 665 (AP)

Mohd. Hamed Sharief v. Mohd. Khaled Sharief

2012-07-31

G.V.SEETHAPATHY

body2012
Judgment : C.R.P.No.3431 of 2012 is directed against the order dated 14.06.2012 in I.A.No.188 of 2012 in O.S.No.2159 of 2009, on the file of the III-Junior Civil Judge, Hyderabad, wherein the said application filed by the petitioners herein, defendants 2 and 3, under Order XVIII Rule 17 CPC for recall of P.W.1 for further cross-examination, was dismissed. 2. C.R.P.No.3432 of 2012 is directed against the order dated 14.06.2012 in I.A.No.289 of 2012 in the same suit, wherein the said application filed by the petitioners herein under Section 151 CPC to reopen the evidence, was dismissed. 3. Heard the learned counsel for the petitioners. None appears for the respondents. Perused the record. 4. The 1st respondents/plaintiff filed the suit for eviction of defendants from the schedule property and for recovery of arrears of rents and mesne profits. The defendants filed written statement contesting the suit. After settlement of issues, the trial of the suit is commenced. The plaintiff was examined as P.W.1 and thereafter the counsel through whom the legal notice Ex.A-16 was got marked was examined as P.W.2. Though Exs.A-16 to A-19 are filed by P.W.1, they were not marked through his evidence but were got marked through P.W.2, the legal counsel through whom the notice was got issued. P.W.2 was cross-examined regarding Exs.A-16 to A-19. The petitioners filed the present application seeking reopening of evidence and recall of P.W.1 for further cross-examination on the ground that they had no opportunity earlier to confront P.W.1 with Exs.A-16 to A-19 in the earlier cross-examination, as the said documents were not marked by them. The trial Court dismissed the application observing that there is no necessity to recall P.W.1 as the documents were marked through the evidence of P.W.2 and he was cross-examined at length. It is to be noticed that P.W.2 was a legal counsel through whom the notice was got issued by deceased father of the 1st petitioner and respondents. As the said documents were not marked in the evidence of P.W.1, the defendants had no occasion to cross-examine P.W.1 regarding the same. The observation of the trial Court that because the documents were marked through P.W.2 further cross-examination of P.W.1 regarding the said documents is unnecessary, is rather misconceived. As the said documents were not marked in the evidence of P.W.1, the defendants had no occasion to cross-examine P.W.1 regarding the same. The observation of the trial Court that because the documents were marked through P.W.2 further cross-examination of P.W.1 regarding the said documents is unnecessary, is rather misconceived. As the petitioners had no opportunity to cross-examine P.W.1 regarding Exs.A-16 to A-19, as they were not marked at that time, they are justified in seeking an opportunity to recall P.W.1 for further cross-examination pertaining to Exs.A-16 to A-19. The impugned orders, dismissing the applications, are therefore, held unsustainable and the same are accordingly set aside. However, the petitioners shall cross-examine P.W.1 on the date fixed by the trial Court pertaining only to documents Exs.A-16 to A-19 and in the event of their failure to avail the said opportunity, the trial Court shall be at liberty to proceed further with the matter without giving any further opportunity. 5. In the result, the civil revision petitions are disposed of accordingly. Miscellaneous petitions, if any, stand closed. There shall be no order as to costs.