Uppala Veera Raghavamma Kumri Jyothi v. Rayudu Durgarao
2023-09-11
CHEEKATI MANAVENDRANATH ROY
body2023
DigiLaw.ai
ORDER : (Cheekati Manavendranath Roy, J.) This Civil Revision Petition is directed against the Order, dated 27.03.2023, passed in I.A.No.174 of 2023 in O.S.No.231 of 2020 on the file of the III Additional Junior Civil Judge, Kakinada, whereby the petition filed under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 ['CPC'], to recall DW1 for further cross-examination was allowed. 2. Heard learned Counsel for the Petitioners. Despite service of notice, none appeared for the Respondent. 3. The Petitioners are the Defendant Nos.1 and 2 in O.S.No.231 of 2020 on the file of the III Additional Junior Civil Judge, Kakinada. The said Suit was filed by the Respondent herein, who is the Plaintiff in the said Suit, for recovery of money on the foot of a promissory note, dated 10.06.2018. After closure of the evidence of the Plaintiff, the Suit was posted for evidence of Defendants. The Husband of 2nd Defendant was examined as DW1 and he was cross-examined by the Plaintiff. The petition was filed on the same day to send the Suit promissory note for examination to hand writing expert with the contemporaneous signatures on the other documents. The said petition was allowed and the expert opinion was received. Thereafter, the Plaintiff has filed a petition under Order XVIII Rule 17 of CPC, to recall DW1 for further cross-examination stating that due to non availability of the Plaintiff, certain questions could not be put to DW1. The said petition came to be allowed by the impugned order recalling DW1 for further cross-examination. 4. Aggrieved thereby the present Civil Revision Petition is filed by the Petitioners/Defendants assailing the legal validity of the same. 5. Learned Counsel for the Petitioners would submit that the Plaintiff did not state as to what are the material aspects on which DW1 is to be further cross-examined and his petition is too vague and the trial Court without considering the same, as to what are the material aspects on which DW1 is required to be further cross-examined has erroneously allowed the petition by recalling DW1 for the purpose of cross-examination. 6. This Court finds considerable force in the contention of the learned Counsel for the Petitioners.
6. This Court finds considerable force in the contention of the learned Counsel for the Petitioners. As can be seen from the petition filed under Order XVIII Rule 17 of CPC, in the trial Court, except stating that DW1 is to be further cross-examined on some material aspects, it is not clarified or stated as to what are the said material aspects on which DW1 is to be cross-examined. So, it is undoubtedly a vague plea taken in the petition by the Plaintiff. When DW1 was already cross-examined by the Plaintiff and when the Plaintiff intends to further cross-examine DW1, he has to explain what are the material aspects on which the further cross-examination is required. The same is conspicuously absent in the petition. So, DW1 cannot be recalled for further cross-examination on such vague plea. 7. Further, it is stated in the petition filed under Order XVIII Rule 17 of CPC as the Petitioners could not give sufficient instructions to their Counsel that the said material aspects are not touched in the cross-examination of DW1. The said ground is not a valid ground to allow the petition to recall a witness for further cross-examination. 8. The erstwhile High Court of Andhra Pradesh in the case of Nagumothu Sriharinath Vs. Nagumothu Vani, 1997(5) ALD 237 held that, recalling a witness for the purpose of further cross-examination on the ground that the counsel at the time of cross-examination was not properly briefed, cannot be permitted. The said judgment squarely applies to the present facts of the case. The trial Court erred in distinguishing the said judgment on irrelevant grounds. Even the Apex Court in the case of Vadiraj Naggappa Vernekar (D) Th.... Vs. Sharad Chand Prabhakar Gogate, Civil Appeal No.1172 of 2009, dated 24.02.2009 held at paragraph No.16 as follows: "16. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined.
The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC." 9. As noticed supra, except stating in a vague manner in the petition that DW1 is to be further cross-examined on some material aspects, what are those material aspects is not clarified. Therefore, the trial Court erred in allowing the petition for recall of DW1 for further cross-examination. The petition appears to have been filed to further delay the process of law and elongate the trial of the case which reached the fag end of the trial of the Suit. 10. Therefore, the Civil Revision Petition is allowed setting aside the impugned order, dated 27.03.2023, passed in I.A.No.174 of 2023 in O.S.No.231 of 2020 on the file of the III Additional Junior Civil Judge, Kakinada. There shall be no order as to costs. 11. As a sequel, miscellaneous petitions, if any pending, in this petition, shall stand closed.