Bhupathiraju Rama Mohan Raju v. Vatsavi Venkata Satyanarayana Varma
2023-08-03
B.S.BHANUMATHI
body2023
DigiLaw.ai
ORDER : (B.S. Bhanumathi, J.) These revision petitions are filed under Article 227 of the Constitution of India against the respective orders dated 06.12.2022 in I.A. No.479 of 2022 in I.A. No.6 of 2022 and in I.A. No.478 of 2022 in O.S. No.271 of 2018 on the file of the Court of Principal Senior Civil Judge, at Gajuwaka. 2. C.R.P. No.471 of 2023 is filed against the order dated 06.12.2022 dismissing the petition in I.A. No.479 of 2022 in I.A. No.6 of 0222 in O.S. No.271 of 2018 filed under Rule 9 of Order IX of the Code of Civil Procedure, 1908 (`CPC') by the 1st defendant to restore the petition in I.A. No.6 of 2022 which was filed for recalling PW1 for further cross-examination. 3. C.R.P. No.458 of 2023 is filed against the order dt.06.12.2022 dismissing the petition in I.A. No.478 of 2022 in O.S. No.271 of 2018 filed under Rule 17 of Order XVIII CPC by the 1st defendant to recall PWs2 to 4 for their cross-examination. 4. The revision petitioner is the 1st defendant, Respondent No.1 is the plaintiff. Respondents 2 and 3 are the defendants 2 and 3 in the O.S. No.271 of 2018. The 1st respondent/plaintiff filed the suit against the revision petitioner/1st defendant and the respondents 2 and 3/defendants 2 and 3 for recovery of money on a promissory note stated to be executed by B.Rajendra Raju, who is the husband of the revision petitioner/1st defendant and the father of respondents 2 and 3/defendants 2 and 3. 5. In I.A. No.479 of 2022, the revision petitioner contended that I.A. No.6 of 2022 was filed as some more questions are to be asked to PW1 on crucial aspects, and the petition was posted to 12.07.2022 on which date the revision petitioner could not get ready due to old age ailments and was advised to take rest, and their counsel also was out of station and could not appear, but the petition was dismissed for default, and that there are no laches on the part of the revision petitioner.
No counter was filed by the 1st respondent/plaintiff, however, the trial court dismissed the petition on the grounds that the matter was posted from time to time on several occasions, and no evidence was placed to show that she suffered from any ill health and that the petitioner was not vigilant and negligent in appearing before the court through the counsel. Having aggrieved by the order, C.R.P. No.471 of 2023 is filed that the trial court did not give reasonable opportunity and appreciate the reasons stated in the affidavit. 6. In I.A. No.478 of 2022, the revision petitioner/1st defendant contended that the petition in I.A. No.6 of 2022 was posted to 14.06.2022 for filing counter and also for cross-examination of PWs2 to 4 and that the counsel for the petitioner represented to the court about I.A. No.6 of 2022 and therefore, requested for cross-examination of PWs2 to 4 along with PW1, but the court treated the cross-examination of PWs2 to 4 as `NIL' and therefore, it is necessary to recall PWs2 to 4. The 1st respondent/plaintiff did not file counter. However, the trial court dismissed the petition stating that the case was adjourned for cross-examination of PWs2 to 4 on costs as the suit was adjourned for their cross-examination on several occasions, and therefore, the trial court declined extension of further time for cross-examination of PWs2 to 4, and for the same reason, this petition was also dismissed observing that there are no bonafides and that the petitioner is negligent in conducting the suit. Having aggrieved by the same, the revision in C.R.P. No.458 of 2023 was filed. 7. Learned counsel for the revision petitioner in both revisions submitted that the revision petitioner was very much ready to cross-examine PWs2 to 4, along with PW1, since the suit promissory note was contested, and that in the event of cross-examining them on different dates, it is difficult to elicit the truth and except for that purpose, there is no intention to delay the matter. Therefore, it is submitted that since I.A. No.6 of 2022 was pending for recall of PW1, PWs2 to 4 could not be cross-examined with a view to cross-examine them along with PW1, if I.A. No.6 of 2022 is allowed, however I.A. No.6 of 2022 was still pending on that day for filing the counter of the 1st respondent/plaintiff. 8.
Therefore, it is submitted that since I.A. No.6 of 2022 was pending for recall of PW1, PWs2 to 4 could not be cross-examined with a view to cross-examine them along with PW1, if I.A. No.6 of 2022 is allowed, however I.A. No.6 of 2022 was still pending on that day for filing the counter of the 1st respondent/plaintiff. 8. On the other hand, the learned counsel for the 1st respondent/plaintiff submitted that since the suit is of the year 2018 and was adjourned several times for cross-examination of the witnesses, as the defendants deliberately failed to cross-examine the witnesses even after imposing costs and were still asking for adjournments on one pretext or the other, the trial court rightly dismissed the petitions. In reply to the submission of the learned counsel for the revision petitioner asking one fair opportunity to cross-examine the witnesses even by imposing costs as the suit is seriously contested, the learned counsel for the 1st respondent submitted that necessary direction may be given stipulating the time within which examination must be concluded, in the event of giving opportunity for the defendants to cross-examine the witnesses for the plaintiff. 9. After considering the submissions of both sides, though it appears that there are some laches on the part of the defendants in attending the trial proceedings, as the suit is contested, unless there is evidence of both sides, the dispute cannot be adjudicated on merits. If there are any laches on the part of the parties, an endeavour can be made to dispose of the case on merits even by imposing costs, rather than disposing of the case by taking the evidence on one side. It seems some costs were already imposed and then due to pendency of I.A. No.6 of 2022, the defendants sought some more time. Even now by disposing I.A. No.479 of 2022, the petition in I.A. No.6 of 2022 still remains for adjudication and the situation would be the same again. Therefore, considering all the facts and circumstances, the trial court as well as both parties can be directed to proceed with the matter expeditiously without wasting time further. 10.
Even now by disposing I.A. No.479 of 2022, the petition in I.A. No.6 of 2022 still remains for adjudication and the situation would be the same again. Therefore, considering all the facts and circumstances, the trial court as well as both parties can be directed to proceed with the matter expeditiously without wasting time further. 10. In the result, both the revision petitions are allowed, orders dt.06.12.2022 in I.A. No.479 of 2022 in I.A. No.6 of 2022 and I.A. No.478 of 2022 in O.S. No.271 of 2018 on the file of the court of Principal Senior Civil Judge, Gajuwaka, are set aside, and accordingly, the I.A. No.479 of 2022 in I.A. No.6 of 2022 and the I.A. No.478 of 2022 in O.S. No.271 of 2018 on the file of the court of Principal Senior Civil Judge, Gajuwaka, are allowed subject to the conditions that the revision petitioner/1st defendant shall pay the 1st respondent/plaintiff Rs.10,000/- (Rupees ten thousand only) on or before 14.08.2023 and thereafter the trial court shall dispose of the I.A. No.6 of 2022 on the immediate next adjournment itself and thereafter depending on the result of I.A. No.6 of 2022, a date may be fixed by the trial court not beyond one week therefrom for cross-examination of PWs2 to 4, along with PW1 in case I.A. No.6 of 2022 is allowed or else for the cross-examination of PWs2 to 4. Both parties shall cooperate for the disposal of the suit. In case of any difficulty for any witness to attend within the time fixed by the trial court, it is left open for the trial court to take a decision and in any case the matter shall not be adjourned for a long time for this purpose or even for the evidence of the defendants, if any, and finally dispose of the suit within two months from the date of receipt of copy of this order. Pending miscellaneous applications, if any, shall stand closed.