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2020 DIGILAW 475 (AP)

Bolem Yerrayyamma v. Medisetty Ramanamma

2020-07-24

G.SHYAM PRASAD

body2020
JUDGMENT G. Shyam Prasad, J. - This Revision Petition arises out of Docket order dated 24.01.2020 passed in I.A.No.183 of 2019 in O.S.No.64 of 2011 by the Senior Civil Judge, Narsipatnam, which is filed for partition by the respondent/plaintiff. 2. Heard arguments of learned counsel for the petitioners and the respondent. 3. The revision petitioners are the defendants in the Suit in O.S.No.64 of 2011. They have filed an Interlocutory application in I.A.No.183 of 2010 under Section 151 CPC seeking to set aside eschew orders passed against DW.4 on 22.11.2019. The witness DW.4 was examined on behalf of the defendants during trial. After filing of his affidavit, the matter was posted for his cross-examination. On the day of examination, the witness DW.4 was not present before the trial Court. Due to non-appearance of DW.4, the Court has passed an order to eschew the chief evidence affidavit of DW.4. 4. Aggrieved by the said order, the present revision is preferred, on the ground that, the witness DW.4, who is aged about 69 years and was suffering from fever and Jaundice as on the date of adjournment i.e., 27.11.2019 and he was bedridden and was under the treatment on the date of adjournment and therefore, he could not attend before the trial Court for his cross-examination. The petitioners claim that DW.4 is the main witness to prove the contention of the defendants in the suit. The petitioners therefore have filed a petition under Section 151 CPC seeking to set aside the order passed by the trial Court. But the said order was dismissed by the trial Court. 5. The grounds of dismissal of the said order are that on 27.08.2019 the chief evidence affidavit of DW4 was filed and the suit was posted for cross-examination to 05.09.2019. Thereafter the witness was not produced till 22.11.2019 by taking so many adjournments by the petitioners/defendants. In spite of directions given by the trial Court for appearance of DW.4, he was not present for his cross-examination and therefore his evidence was eschewed. The other reason stated by the trial Court was that the medical certificates furnished by DW.4 are not at all corroborating with each other and inconsistent in the reasons given in the certificates. 6. The order passed by the trial Court reveals that several opportunities were given for appearance of DW.4 but he was not present for cross-examination. The other reason stated by the trial Court was that the medical certificates furnished by DW.4 are not at all corroborating with each other and inconsistent in the reasons given in the certificates. 6. The order passed by the trial Court reveals that several opportunities were given for appearance of DW.4 but he was not present for cross-examination. In fact, the case of the petitioners is that DW.4 was an old man, aged about 69 years, and was suffering from fever and Jaundice. They have also produced some medical certificates to that effect. The trial Court has not referred to any of the medical certificates produced by the petitioners and inconsistency between the medical certificates and the dates of the adjournments. Therefore, the order passed by the trial Court is not having any valid reasons for eschewing the evidence of DW.4 who is said to be the main witness in the suit. Therefore, the order passed by the trial Court, is liable to be set aside. 7. On consideration of the facts and circumstances of this case, in order to give an opportunity to the petitioners to prove their case, the trial Court is hereby directed to call DW.4 for cross-examination of the plaintiff/respondent. DW.4 is hereby directed to be present before the trial Court on 05.08.2020 without fail, and the petitioners shall also pay costs of Rs.2,000/- (Rupees Two thousand only) to the respondent in view of some inconvenience caused to him. On the date of appearance of DW.4, he shall be cross-examined by the learned counsel for the plaintiff/respondent, and the case shall be disposed of in accordance with law. In the event of failure of the appearance on the date of adjournment, the trial Court shall proceed with trial by following further steps in the matter . 8. With these observations, the Civil Revision Petition is disposed of. There shall be no order as to costs. Miscellaneous petitions, if any, pending shall also stand closed.