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2023 DIGILAW 1199 (AP)

Makam Leela Kumari v. Gurram Jaya Lakshumma

2023-08-16

B.S.BHANUMATHI

body2023
JUDGMENT 1. Can the evidence in chief-examination and crossexamination already concluded be eschewed if the witness fails to turn up to lead the further evidence which is subsequently allowed to be recorded? 2. These civil revision petitions are filed under Article 227 of the Constitution of India against the orders dtd. 29/9/2022 dismissing I.A. Nos.1125 and 1126 of 2022 in O.S. No.60 of 2013 on the file of the Court of II Additional District Judge, Kadapa at Proddutur filed by the defendant under Order XVIII Rule 17 read with Sec. 151 of the Code of Civil Procedure, 1908 ('CPC') to set aside the order dtd. 11/8/2022 eschewing the chief affidavit of D.W.1 and closing the evidence of defendant and further to recall the defendant for further evidence as allowed in I.A. No.834 of 2022 and to receive documents as allowed in I.A. No.8 of 2022. 3. The revision petitioner is the defendant and the respondent is the plaintiff in the suit. 4. The plaintiff filed a suit for recovery of money based on a promissory note. The defendant took a plea of forgery and fabrication of the suit promissory note alleging that there were business dealings between her husband and the husband of the plaintiff and that the husband of the defendant borrowed Rs.8,50,000.00 from the husband of the plaintiff and executed promissory note in his favour, however, subsequently, as the husband of the defendant incurred heavy loss, he filed insolvency petition in I.P. No.24 of 2013 against his creditors among whom the husband of the plaintiff is the 4th respondent therein and as such, since there are no movable or immovable properties of the husband of the defendant, but the defendant has immovable properties, the suit promissory note was brought into existence to recover huge amounts. It is further alleged that the plaintiff has no capacity to lend huge amount. 5. After closing the evidence of D.W.1, both in chiefexamination and cross-examination, she filed I.A. No.8 of 2022 and I.A. No.834 of 2022 for the purpose of recalling her and filing certified copies of petition in I.P. No.24 of 2013 and judgment in O.S. No.156 of 2013 which was filed by the plaintiff herein against the husband of the defendant. Both petitions were allowed and the matter was posted for taking further evidence of D.W.1 on record. The matter stood posted to 11/8/2022 for the said purpose. Both petitions were allowed and the matter was posted for taking further evidence of D.W.1 on record. The matter stood posted to 11/8/2022 for the said purpose. However, on 11/8/2022 there was no representation for the defendant till 5.00 PM. As such, the trial court passed the order eschewing the chief affidavit of D.W.1 and closed the evidence of the defendant and posted the matter to 16/8/2022 for arguments. 6. Having aggrieved by the order, the defendant filed in I.A. No.1125 of 2022 to reopen the evidence of defendant and I.A. No.1126 of 2022 to set aside eschewed order dt.11/8/2022 and to recall D.W.1 on the ground that a day before passing the orders, the petitioner along with the entire family went to Hyderabad as her brother-in-law was admitted in a private hospital in serious condition and it was informed to the counsel, the counsel reporting the same requested the Court for an adjournment, but the petition was dismissed on 29/9/2022 observing that the suit was coming for the evidence of the defendant for more than 3 1/2 years after completion of the cross-examination of D.W.1 on 12/11/2018, however both the petitions in I.A. No.8 of 2022 and 834 of 2022 were allowed and the matter was posted to 11/8/2022 on which date the evidence of the defendant was closed and the evidence of D.W.1 was eschewed. Even thereafter, the matter was posted to 5/9/2022 from 16/8/2022, and then the petitioner came up with I.A. No.1126 of 2022. It was returned and the suit was posted to 12/9/2022 for argument and thereafter posted to 26/9/2022 for judgment, on which date the petition was returned with objections and the case was posted to 29/9/222, but in the meanwhile the petitions were represented on 27/9/2022. The trial court further observed that to substantiate the reason for absence of the defendant, no proof was filed and that there are no bonafides and due diligence to take forward the proceedings for the last 3 1/2 years though the suit relates to the year 2013. Therefore, the petitions were dismissed. 7. The trial court further observed that to substantiate the reason for absence of the defendant, no proof was filed and that there are no bonafides and due diligence to take forward the proceedings for the last 3 1/2 years though the suit relates to the year 2013. Therefore, the petitions were dismissed. 7. In view of the dismissal of the petitions, both these revision petitions were filed contending that the petitions were dismissed on technicalities and that the petitioner could not attend only because of admission of the close relative in the hospital in serious condition and further that by dismissing the petition, the trial court committed a grave error and that no prejudice would be caused to the respondent/plaintiff if the order eschewing the evidence is set aside. 8. The Learned counsel for the petitioner/defendant submitted that the trial court ought not to have passed the order eschewing the evidence in chief and cross examinations which was already concluded, whereas I.A. No.8 of 2022 and 834 of 2022 is only for the purpose of leading further evidence and therefore eschewing the earlier evidence is unsustainable in law. He further submitted that as the petitioner/ defendant could not attend before the Court for reasons stated, the trial court ought to have given an opportunity to lead evidence which is permitted in I.A.Nos.8 of 2022 and 834 of 2022. The learned counsel for the petitioner further submitted that the respondent/ plaintiff did not file counter and oppose the petition and similarly, here also, though appearance has been made through the counsel, no representation has been made even today to oppose the petition. 9. As can be seen from the record, the error apparent on the face of the record is that the trial court passed an order eschewing the entire evidence of D.W.1 which was recorded before recalling the witness for the purpose of filing additional evidence. If at all the petitioner did not turn up on 11/8/2022 to lead additional evidence for which I.A. No.8 of 2022 and I.A. No.834 of 2022 were allowed, at best the trial court could have closed the opportunity to lead the additional evidence, but it cannot eschew the evidence earlier recorded, since it is nothing to do with the additional evidence. Therefore the order eschewing the whole evidence of D.W.1 needs to be set aside. 10. Therefore the order eschewing the whole evidence of D.W.1 needs to be set aside. 10. Insofar as closing the evidence of D.W.1, for leading further evidence which was permitted under orders in I.A. Nos.8 and 834 of 2022 is concerned, the petitioner/ defendant stated that she was prevented from attending the court due to personal inconvenience as she had been to Hyderabad to attend a relative who was joined in a private hospital in a serious condition. Of course, the petitioner did not file any evidence in support of the reasons stated, but based on her affidavit only. The reason stated by her, for want of evidence, can be stated neither true nor a lie. Since it is only on one occasion after allowing both the petitions she could not attend, a liberal approach ought to have been adopted by the trial court in giving one opportunity by imposing terms as to costs for meeting the inconvenience caused to the respondent/ plaintiff, instead of closing the opportunity to lead evidence. She has already mentioned in her written statement about filing of I.P., whereas she has not referred to filing of the suit, but the fact to be proved by her is that the plaintiff has initiated several legal actions one after the other against the defendant and her husband and the suit proceeding is one such action. Whether the petitioner would be able to successfully prove her defence is a matter of appreciation of evidence. But, giving an opportunity to place the relevant evidence need not be closed for one lapse on that day. Every endeavour must be made to receive the evidence so as to decide the matter on merits. As such, for both reasons the order impugned is liable to be set aside. 11. In the result, the revision petitions are allowed and the order dtd. 29/9/2022 in I.A. No.1125 and 1126 of 2022 in O.S. No.60 of 2013 on the file of the court of II Additional District Judge, Proddatur, is set aside. Accordingly, I.A. Nos.1125 and 1126 of 2022 are allowed on the condition that the petitioner/ defendant shall pay the respondent/ plaintiff Rs.2,000.00 (Rupees two thousand only) in each petition within 10 days from the date of this order, failing which the petitions shall stand dismissed without any further order. Pending miscellaneous applications, if any, shall stand closed.