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2014 DIGILAW 1571 (AP)

Y. Ashok v. Gade Ram Reddy

2014-12-29

A.V.SESHA SAI

body2014
ORDER : Akula Venkata Sesha Sai, J. 1. The defendant in O.S. No. 52 of 2012 on the file of the Court of the Principal District Judge, Nalgonda, is the revision petitioner in this revision filed under Article 227 of the Constitution of India. This revision assails the order passed by the learned Principal District Judge in I.A. No. 640 of 2014 filed by the plaintiff/respondent herein under the provisions of Order XVIII Rule 17 read with Section 151 of the Code of Civil Procedure (for short, 'the CPC'). 2. Heard Sri P.S.P. Suresh Kumar, learned counsel for the petitioner, and Sri Vishnuvardhan Reddy, learned counsel for the respondent; apart from perusing the material available before this Court. 3. The respondent herein instituted respondent/plaintiff that there is no O.S. No. 52 of 2012 against the revision petitioner for recovery of a sum of Rs.22,55,066/- on the foot of a promissory note. The defendant/revision petitioner filed written statement, resisting the averments in the plaint. After conclusion of his evidence as PW1, the respondent/plaintiff filed I.A. No. 640 of 2014 under Order XVIII Rule 17 read with Section 151 of the CPC, seeking his recall for receiving Statement of Account from the State Bank of India. The defendant/revision petitioner filed a counter, opposing the said application. The learned Principal District Judge, Nalgonda, by way of the impugned order, allowed the said I.A. Calling in question the validity and legal sustainability of the said order, the present revision has been filed. 4. It is contended by the learned counsel for the petitioner that the order under challenge is erroneous, contrary to law and is opposed to the very spirit and object of the provisions of Order XVIII Rule 17 of the CPC. It is further contended that the learned District Judge did not assign any reasons in the order impugned and hence the same is not sustainable. It is also contended that in view of the absence of any reasons in the affidavit filed in support of the application, the learned District Judge grossly erred in allowing the application. Learned counsel further contends that had the averments in the counter filed on behalf of the defendant been taken into consideration, the order under challenge in the present revision would not have emanated. 5. Learned counsel further contends that had the averments in the counter filed on behalf of the defendant been taken into consideration, the order under challenge in the present revision would not have emanated. 5. Per contra, it is vehemently contended by the learned counsel for the illegality nor infirmity nor jurisdictional error in the impugned order; as such the same is not amenable for any challenge before this Court by way of revision under Article 227 of the, Constitution of India. It is further contended by the learned counsel for the respondent that the order impugned would not cause any prejudice to the revision petitioner/defendant and on the other hand, the same would be helpful for the Court below in arriving at a just and reasonable conclusion while adjudicating the issue involved in the main suit. 6. In the above background, now the question that emanates for consideration of this Court is whether the order passed by the Court below is sustainable and tenable? 7. The material available on record clearly and categorically discloses that the plaintiff/respondent herein, after conclusion of his evidence as PW1, filed application, seeking recall of witness for the purpose of marking Statement of Account from the State Bank of India. The revision petitioner strongly resisted the said application by filing counter. A reading of the counter, which is placed on record by the learned counsel for the revision petitioner, would disclose that the defendant/revision petitioner raised various objections with regard to the maintainability of the application and sustainability of the relief sought therein. But, a perusal of the impugned order shows that the learned Principal District Judge did not advert to any of those objections raised by the defendant/revision petitioner in his counter. The learned Principal District Judge, in the considered opinion of this Court, grossly erred in failing to assign reasons for allowing the application. Therefore, the impugned order cannot sustain in the eye of law. In the opinion of this Court, the learned Principal District Judge ought to have considered the averments filed in support of the application and also the objections taken by the defendant/revision petitioner in his counter. Such exercise is conspicuously absent in the order impugned. Therefore, this Court deems it appropriate to remand the I.A. No. 640 of 2014 for fresh consideration. Such exercise is conspicuously absent in the order impugned. Therefore, this Court deems it appropriate to remand the I.A. No. 640 of 2014 for fresh consideration. For the aforesaid reasons, the revision is allowed, setting aside the orders passed by the learned Principal District Judge in I.A. No. 640 of 2014 and the said I.A. is remanded for fresh consideration by the learned Principal District Judge after giving notice and opportunity of hearing to all the stake holders. No order as to costs. Miscellaneous petitions, if any, pending in this writ petition shall stand closed.