ORDER : 1. Plaintiffs before the trial Court filed this Civil Revision Petition under Article 227 of Constitution of India, challenging the correctness of Order dated 17.10.2017 of learned VII Additional District Judge (Fast Track Court), Visakhapatnam in I.A. No. 1349 of 2017 in O.S. No. 428 of 2012. The respondents herein are the defendants before the learned trial Court. 2. O.S. 428 of 2012 is a suit filed by the three plaintiffs through their General Power of Attorney Holder against three defendants concerning 572 Sq. yds. of vacant site in S. No. 46/6 part of Maddilapalem Village within the limits of Greater Visakhapatnam Municipal Corporation. They claim that all the three plaintiffs along with Defendant Nos. 2 and 3 are absolute owners of it and therefore their title shall be declared with a consequential relief of recovery of possession from 1st defendant and for a perpetual injunction restraining first defendant from interfering with possession and enjoyment of plaintiffs and also for damages for unauthorized use and occupation of the plaint schedule property and for costs. 3. First defendant put in her written statement. Trial commenced. During the pendency of recording of evidence plaintiffs filed I.A. No. 1349 of 2017 under Order XVIII Rule 17 r/w Section 151 C.P.C. with a prayer to recall PW-1 for the purpose of marking documents which were filed along with petition. General Power of Attorney Holder of the plaintiffs filed sworn affidavit in support of this petition stating that he had already given evidence as PW-1, got marked Exs.A1 to A27. That he had filed I.A. No. 135 of 2016 and I.A. No. 1510/2016 along with some more documents. Those two applications were allowed. Now those documents have to be marked. For that purpose he has to give evidence for the purpose of marking all these documents. 4. As against it, Defendant No. 1/Respondent No. 1 filed a counter stating that the petitioners who mentioned about two earlier applications for documents are aware of the said fact and they should have taken steps for recall of PW-1 before the evidence of PW-1 was completed in chief and cross or atleast soon thereafter, or at least within a reasonable time thereafter. They did not do so.
They did not do so. At the trial, they have been taking lot of time and coming up with one petition or other and with reference to the evidence of PW-2 he appeared for evidence for some time and did not appear for further cross-examination and then the petition is filed and for another witness by name Sri P. Narasinga Rao they filed another petition and so far like this these petitioners filed ten or eleven applications. Respondent No. 1 further stated that plaintiffs/petitioners earlier approached the Hon’ble Court stating that the Fast Track Court established for disposal of suits of senior citizens has not been vigilant and therefore they sought for a direction for expeditious disposal of the suit. Having sought for such relief from the Hon’ble High Court they have been protracting the litigation without any valid cause. It is further stated that the plaintiffs initially did not enter the witness box and their General Power of Attorney Holder gave evidence as PW-1 and thereafter plaintiffs moved a petition under Order XIII Rule 3(A) stating that PW-1 did not know certain facts personally and thereafter permission was sought for, for examining the first plaintiff as a witness on plaintiff side and that was allowed and he commenced the evidence as PW-2. When PW-1/General Power of Attorney Holder does not have personal knowledge of facts the prayer in the present petition is to recall PW-1. The petition is silent as to the facts that are intended to be proved through to PW-1 in the name of marking documents. Unless petitioners explain these facts and clear the ambiguity, the prayer cannot be accepted for recalling PW-1 and adducing documents as evidence does not serve any useful purpose. It is lastly mentioned that majority of the documents covered by interlocutory applications were already exhibited. For these reasons Respondent No. 1 sought for dismissal of the application with exemplary costs. 5. Learned VII Additional District Judge (Fast Track Court) Visakhapatnam, inquired into the application, considered the submissions on both sides and dismissed the petition and refused to recall PW-1. One of the reasons for such a conclusion is that the affidavit of the applicant mentioned about documents produced under two earlier applications. It is mentioned that I.A. No. 135 of 2016 is referred by petitioners but that is not about documents but that is an application for framing additional issue.
One of the reasons for such a conclusion is that the affidavit of the applicant mentioned about documents produced under two earlier applications. It is mentioned that I.A. No. 135 of 2016 is referred by petitioners but that is not about documents but that is an application for framing additional issue. The other application mentioned in the petition is I.A. No. 1510 of 2016 and that application also is not about documents and that application is about appointment of Advocate Commissioner to record the evidence of PW-2. After referring to the record it recorded such an observation. Learned trial Court stated that since those applications do not pertain to documents, the question of recalling PW-1 does not arise and petitioners do not know what are the applications filed by them and thereby disclosed to the Court that their attitude is only to keep the litigation alive. Learned trial Court gave another reason stating that while seeking permission of the Court for the first plaintiff to depose as PW-2, the plaintiffs mentioned that their General Power of Attorney Holder/PW-1 do not know all the facts of the present case. However, now the plaintiffs say that PW-1 knows the facts about the documents. Thus plaintiffs are saying different things from time to time. It is for these reasons it could not allow the prayer made for recalling PW-1 especially in the context that they themselves obtained permission from the Hon’ble Court for speedy disposal of the case but all throughout the plaintiffs have not been cooperating with the Court to comply with such directions. With these reasons it chose to dismiss the petition. 6.
With these reasons it chose to dismiss the petition. 6. Challenging that, the present revision is filed by the plaintiffs stating that the impugned order does not contain justifiable reasons and the lower Court failed to see the purport of the provision under which the application is filed and at Para 6 of the grounds of the revision, the following is stated: “The court below failed to take into consideration the case of the petitioners in a right perspective and further failed to see the reasons mentioned in the affidavit duly praying the Court below to recall PW-1 for marking documents which were received by the Court in another interlocutory application i.e. I.A. No. 1510/2016.” That the trial Court failed to see that no prejudice would be caused to the defendants if the application filed by the petitioner is allowed. For these reasons they seek to set-aside the impugned order. 7. During the course of hearing, learned counsel for revision petitioners submit that before praying for recall of PW-1 certain documents, on application, were received by the trial Court. The purpose of filing those documents is to bring them on record as evidence. To achieve that purpose recalling of PW-1 is necessary. Since certain documents are filed along with the I.A. No. 1349 of 2017 also they are also required to be exhibited in evidence. Ignoring all these, learned trial Court refused to recall PW-1 with unjust reasons. 8. As against this, learned counsel for Respondent No. 1 submitted that petitioners have been protracting the litigation and they have not been vigilant and never co-operated despite the directions of the Hon’ble High Court for expeditious disposal of the case. 9. Learned counsel for Respondent No. 1 brought to the notice of the Court that though the prayer in the I.A. No. 1349/2017 indicated certain documents filed along with that petition, one could not see any such document referred either in the body of the affidavit or in the form of a list given with description of the documents. Learned counsel submits that no documents were filed along with I.A. No. 1349/2017. It is argued that in such circumstances, the view taken by the learned trial Court is in accordance with jurisdiction vested with it. Therefore, no interference is called for. 10.
Learned counsel submits that no documents were filed along with I.A. No. 1349/2017. It is argued that in such circumstances, the view taken by the learned trial Court is in accordance with jurisdiction vested with it. Therefore, no interference is called for. 10. Having heard the submissions on both sides and having perused the entire record, the point that falls for consideration is: “Whether the learned trial Court failed to exercise its discretion judiciously leading to injustice requiring interference under Article 227 of the Constitution of India?” 11. POINT: The expectation of law and the scheme of procedure provided by law is always to see that both parties to a civil suit produce all the relevant documents in support of their respective contentions, so as to enable the trial Court to reach to appropriate conclusions. 12. The facts on record show that, PW-1 was once examined and cross examined and was discharged. The prayer in the petition before the lower Court was to recall him for the purpose of exhibiting certain documents that were filed along with the petition. As one could see, the I.A. No. 1349/2017 does not contain any document being referred and does not contain any list of documents filed along with such application. The affidavit of the deponent/General Power of Attorney Holder/PW-1 also does not make a mention as to which is the document he filed along with I.A. No. 1349 of 2017. Therefore, learned counsel for the respondent is right in stating that though the petitioner mentioned about documents being filed along with petition, there are no documents filed. Thus, to that extent the prayer of the petitioner could not have been considered otherwise by the lower Court. Be that as it may. 13. At Para 6 of the grounds mentioned in this revision, reference s made to I.A. No. 1510/2016 stating that under that application documents were already filed and they were to be exhibited by recalling PW-1. On this point the learned trial Court held that, that was not an application for documents but that was an application for appointment of an Advocate Commissioner to record the evidence of PW-2 and that warrant was executed and report was also filed. Despite such fact being made and noted in the impugned order, the revision petitioners once again argue the same thing that was repelled by the trial Court.
Despite such fact being made and noted in the impugned order, the revision petitioners once again argue the same thing that was repelled by the trial Court. If one would have to think that there was some mistake in mentioning the number of the application under which the alleged documents were already filed, at least that should have been mentioned in the revision. That was not done. To say that trial Court erroneously considered and made a mention that I.A. No. 1510/2016 is with reference to appointment of Advocate Commissioner to record the evidence of PW-2, at least a copy of I.A. No. 1510/2016 should have been filed, to go with the revision petitioners and say that there was incorrect reference to the facts by the trial Court. The revision petitioners have not chosen to file a copy of I.A. No. 1510/2016. Therefore, there is no justification for revision petitioner in arguing incorrect thing. 14. It is undisputed that questioning the tardiness of the Fast Track Courts in disposing of suit in O.S. No. 428/2012 of Senior Citizens, on an earlier occasion these very revision petitioners obtained direction from this Court for the speedy disposal of the suit. Viewed, in that context, the criticism of first respondent and observations of learned trial Court that the revision petitioners were not cooperating with trial and its quick progress cannot be found fault with, especially when the revision petitioners have not shown anything contrary to it. 15. Exhibiting any document through the evidence of a witness pre-supposes that there was a need to prove or disprove a particular fact alleged and denied. What are those documents and why they were relevant and whether the witness sought to be recalled is the one who was supposed to speak to the facts of those documents are matters of normal importance in the trial of a suit. The affidavit of the deponent/PW-1 before the trial Court in I.A. No. 1349/2017 does not answer any of those legal requirements. The above circumstances were also examined by learned trial Court on the basis of one more fact. The fact was that. party to the suit/first petitioner/PW-2 had already mentioned that the General Power of Attorney Holder/PW-1 had no knowledge of certain facts.
The above circumstances were also examined by learned trial Court on the basis of one more fact. The fact was that. party to the suit/first petitioner/PW-2 had already mentioned that the General Power of Attorney Holder/PW-1 had no knowledge of certain facts. In that view of the matter, learned trial Court held that, when PW-1 had no knowledge of certain facts it was up to the plaintiffs to explain how and why they intended to have the documents exhibited through the evidence of PW-1 by recalling him, especially when nothing was mentioned even vaguely that it was PW-1 who knew the facts concerning those documents. 16. In the light of these facts, the contention of the revision petitioners that the learned trial Court dismissed their application without justifiable reason and without appreciating the purport of under Order XVIII Rule 17 of Civil Procedure Code is all incorrect. Coming to the facts and circumstances of the proceedings that were pending before the learned trial Court, the impugned order indicates one to understand that it was based on facts available on record and the discretion was rightly exercised by the learned trial Court. There are no merits in the revision. Point is answered against the revision petitioners. 17. In the result, the Civil Revision Petition is dismissed confirming the order dated 17.10.2017 of learned VII Additional District Judge, Visakhapatnam in I.A. No. 1349 of 2017 in O.S. No. 428 of 2012. There shall be no order as to costs. 18. As a sequel, miscellaneous applications pending, if any, shall stand closed.