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2013 DIGILAW 1006 (AP)

Shaik Gousiya Begum v. Shaik Hussan

2013-11-13

A.RAJASHEKER REDDY

body2013
JUDGMENT This Civil Revision Petition is filed aggrieved by common order dated 01.07.2013 in I.A.No.201 of 2013 in O.S.No.234 of 2007 passed by the Junior Civil Judge, Kodad, wherein the Court below dismissed the above petition. 2. Brief facts which are necessary for disposal of the Civil Revision Petition are as follows: The petitioner/plaintiff filed suit O.S.No.234 of 2007 on the file of the Junior Civil Judge, at Kodad, on 05.09.2007 and the respondent/defendant filed written statement on 13.12.2007. P.W.1 was examined on 21.01.2011. He was cross-examined on 26.04.2011. Thereafter, the defendants’ evidence was closed on 01.04.2013 and at this stage, the petitioner filed I.A.Nos.200 and 201 for reopening the case to adduce further evidence on behalf of the plaintiff and issue summons to the plaintiff in respect of Ex.A1. 3. The case of the revision petitioner is that the revision petitioner thought that the evidence of attester of Ex.A1 is sufficient, as such, she could not produce the executant of Ex.A1. As per the legal advise, as other side may take advantage of non-production of executant, it is just and essential to re-open the case and to issue summons to the executant of Ex.A1. In order to disprove the same, the evidence of Smt. Boinapally Bhadramma is essential. 4. The respondents/defendants filed counter contending that the suit is filed for perpetual injunction on 05.09.2007 and the written statement filed on 13.12.2007 denying the plaint averments and specifically pleaded that Boinapaplly Bhadramma has got no right, title or interest over the suit schedule property. It is also specifically pleaded that the said Boinapally Bhadramma cannot transfer better right or title to the petitioner in respect of the suit schedule property. It was also pleaded that P.W.1 gave evidence on 21.01.2011 and closed her evidence by examining P.Ws.2 and 3. It is also stated that the petitioner was cross-examined on 26.04.2011 as P.W.1 to the effect that the registered sale deed Ex.A1 was not executed by Boinapally Bhadramma and the thumb impressions appearing on Ex.A1 do not belongs to Boinapally Bhadramma. P.W.3 is the first attestor of Ex.A1. He was also cross-examined on 05.03.2012 to the effect that Boinapally Bhadramma never visited Sub-Registrar office on 16.08.2007 nor executed Ex.A1. In spite of specific denials, the petitioner did not choose to examine the said Boinapally Bhadramma. P.W.3 is the first attestor of Ex.A1. He was also cross-examined on 05.03.2012 to the effect that Boinapally Bhadramma never visited Sub-Registrar office on 16.08.2007 nor executed Ex.A1. In spite of specific denials, the petitioner did not choose to examine the said Boinapally Bhadramma. D.Ws.1 to 4 were examined on behalf of the respondents and after submission of arguments on behalf of the petitioner, and the matter is coming up for reply arguments. At this stage, the petition is not maintainable and not given any valid reasons and sought for dismissal of the same. 5. The Court below dismissed the application by common order dated 01.07.2013 holding that the petitioner has filed the petition at belated stage and to fill up lacunae which were pointed out during arguments. Against the same, the present Civil Revision Petition is filed. 6. Learned Counsel appearing for the petitioner submits 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, if circumstances warrant, Court can grant such opportunity under Section 151 C.P.C. He also submits that there is no embargo to recall a witness after closure of evidence and it is the discretion of the Court to allow the application having regard to the facts and circumstances of the case. At any stage, the Court can recall the witness for examining or cross-examining. He also contends that when witness is recalled, the photograph which is affixed on Ex.A1 sale deed will be shown to the witness and within two minutes her examination will be completed and no prejudice will be caused to the respondents by reopening the suit and issuing summons to the executant of Ex.A1. In support of his contention, he relied on the judgments reported in Sultan Saleh Bin Omer v. Vijayachand Sirimal (AIR 1966 Andhra Pradesh 295), Mohd. Hussain Khan and others v. National Insurance Co. Ltd., Nanded, Maharashtra State ( 2011 (3) ALD 174 ) and Rasiklal Manikckchand Dhariwal v. M.S.S.Food Products (2012 (3) ALD 67 (SC). 7. On the other hand, learned counsel for the respondents submits that the application is filed after completion of arguments of both sides and suit is coming up for reply arguments on behalf of the plaintiff only to fill up the lacunae and that too at the belated stage. 7. On the other hand, learned counsel for the respondents submits that the application is filed after completion of arguments of both sides and suit is coming up for reply arguments on behalf of the plaintiff only to fill up the lacunae and that too at the belated stage. He contends that even while P.W.1 was cross-examined, specific question was put to P.W.1 that even Ex.A1 is not signed by executant therein. At this belated stage, the matter cannot be reopened and the Court below rightly dismissed the application. He also contends that the petitioner cannot abuse the process of Court and that the power under the provisions of Order 18 Rule 17 is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and examination would not cause any prejudice to the parties. In support of his contention, he relied on the Judgment reported in Vadiraj Naggappa Vernekar (deceased by L.Rs) v. Sharad Chand Prabhakar Gogate (AIR 2009 Supreme Court 1604), T.Ramachandra Murthy v. K.Rama Murthy and others (AIR 1980 Andhra Pradesh 265(1). 8. In the present case on hand, the petition is filed for reopening the case and for issuing summons to the witness namely Boinapally Bhadramma, who is said to be executant of Ex.A1, which was filed after evidence of other side is closed and both the parties advanced their arguments and the matter is coming up for reply arguments. 9. The respondents filed written statement in the main suit specifically pleading that said Boinapally Bhadramma has got no manner of right, title or interest over the suit schedule property. It is also alleged that the registered sale deed was created and brought into existence for the purpose of the suit. P.W.1 was also cross-examined on 26.04.2011 to the effect that Ex.A1 was not at all executed by Boinapally Bhadramma and that the thumb impressions appearing on Ex.A1 do not belongs to her. P.W.2 was cross-examined on 01.12.2011. The petitioner also examined the first attestor of Ex.A1 as P.W.3. He was cross-examined on 05.03.2012 and clear suggestion was put to him that Boinapally Bhadramma never executed Ex.A1 and the thumb impression appearing on Ex.A1 do not belong to her. Thereafter, defendants were examined as D.Ws.1 to 4. 10. P.W.2 was cross-examined on 01.12.2011. The petitioner also examined the first attestor of Ex.A1 as P.W.3. He was cross-examined on 05.03.2012 and clear suggestion was put to him that Boinapally Bhadramma never executed Ex.A1 and the thumb impression appearing on Ex.A1 do not belong to her. Thereafter, defendants were examined as D.Ws.1 to 4. 10. It is to be noted here that the affidavit of the petitioner is silent as to on what reasons the petitioner failed to examine her vendor at the earliest point of time. The Court below has granted conditional orders even at the time of commencement of trial and also at the stage of arguments. The subject petition is filed on 17.06.2013 after P.W.3 was examined on 05.03.2012. It appears from the record that the petitioner is not diligent enough in filing the petition to summon the said Boinapally Bhadramma at the earliest point of time, though suggestions were put to other witnesses and P.W.1 herself. The Court below, after considering the material available on record, came to the conclusion that the petition has been filed at belated stage in order to fill up lacunae. 11. Learned counsel for the petitioner relied on the judgment reported in Mohd. Hussain Khan and others v. National Insurance Co. Ltd., Nanded, Maharashtra State (supra), wherein it is held as follows: “11. It is most unfortunate that the lower Tribunal dismissed the application filed by the petitioner. The Tribunal ought to have considered that the claimants 1 and 2 have approached the Tribunal claiming compensation for the death of their son. In fact, the Tribunal has to follow its own procedure as it thinks fit.” In the above cited case, this Court observed that there is no embargo on power of Court to recall a witness after closure of evidence. In the above case, this Court was dealing with the claim for compensation under Motor Vehicles Act, Tribunal, strict rules of procedure as contemplated under C.P.C will not apply. In the above case, when the case was posted for cross-examination of P.W.1, he was absent on that day. But in the present case, there is enormous delay in filing the petition. The facts in the present case and in the above case are quite different. Therefore, the above Judgment cannot come to the rescue of the petitioner. In the above case, when the case was posted for cross-examination of P.W.1, he was absent on that day. But in the present case, there is enormous delay in filing the petition. The facts in the present case and in the above case are quite different. Therefore, the above Judgment cannot come to the rescue of the petitioner. In Sultan Saleh Bin Omer v. Vijayachand Sirimal (supra), this Court held that if circumstances warrant, Court can grant an opportunity to recall witness for examination, cross-examination or re-examination under Section 151 CPC. There is no doubt that Court can grant an opportunity to recall a witness, but in the present case, the Trial Court in its discretion found that the petition is filed belatedly in order to fill up lacunae. As such, the same cannot be found fault with. In Rasiklal Manikckchand Dhariwal v. M.S.S. Food Products (supra), it is observed by this Court as under: 69. Recently, in the case of M/s. Shiv Cotex v. Tirgun Auto Plast P. Ltd. and Ors. (Civil Appeal No. 7532 of 2011) decided on August 30, 2011, this Bench speaking through one of us (R.M. Lodha, J.), said, “…….Should the court be a silent spectator and leave control of the case to a party to the case who has decided not to take the case forward? ........”. In paragraph 16 of the judgment, we stated : “No litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system..........The past conduct of a party in the conduct of the proceedings is an important circumstance which the courts must keep in view whenever a request for adjournment is made. A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit - whether plaintiff or defendant - must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril..........” The above cited judgment cannot come to the rescue of the petitioner. 12. The parties to a suit - whether plaintiff or defendant - must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they don't, they do so at their own peril..........” The above cited judgment cannot come to the rescue of the petitioner. 12. Learned counsel for the respondents relied on the judgment in Vadiraj Naggappa Vernekar (deceased by L.Rs) v. Sharad Chand Prabhakar Gogate (supra), it is held as follows: “17. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out.” In the above cited judgment, it is held by the Supreme Court that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination and the same should be sparingly used in appropriate cases. In the present case on hand, the trial Court was not inclined to exercise its discretion to allow the application on the ground that it has been filed belatedly and that to fill up the lacunae which were pointed out during arguments, as such, the trial Court dismissed the application filed by the petitioner. The above cited judgment will support the case of the respondents. 13. In view of the above discussion, I do not find any infirmity or illegality in the order passed by the Court below in I.A.Nos.200 and 201 of 2013 in O.S.No.234 of 2007 and the same is hereby confirmed. 14. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand closed.