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2024 DIGILAW 926 (AP)

Chunduru Srinivasa Rao v. G. Dhubagunta Dhanalakshmi

2024-08-02

U.DURGA PRASAD RAO

body2024
ORDER : The challenge in this CRP is to the order in I.A.No.50 of 2024 in O.S.No.852/2016 passed by the II Additional Civil Judge (Senior Division), Vijayawada dismissing the petition filed by the petitioners/defendant Nos.1, 2, 3 and 5 U/s 151 C.P.C to reopen the matter for cross-examination of PW.3. 2. The trial Court dismissed the petition on the main ground that earlier when the matter was posted for cross-examination of PW.3 on 07.11.2023, the defendants did not cross-examine official witness and hence their cross-examination was recorded as nil and thereafter the petitioners did not file any petition to re-open and re-call PW.3 immediately but they filed IAs belatedly only to protract the matter and suit is of the year 2016 and therefore there were no bona fides in the petition. 3. Heard arguments of learned counsel for petitioner Sri Challa Ajay Kumar and learned counsel for respondents Sri Josyula Bhaskara Rao. 4. It is seen that O.S.No.852/2016 was filed by the plaintiff seeking permanent injunction in respect of plaint schedule property which is said to be asbestos roofed shed in an extent of 3199.80 Sq. Yds. of site situated within the limits of Vijayawada Municipal Corporation. The plaintiff claims that she is the absolute owner of the plaint schedule property and in enjoyment thereof since 1973, having purchased the same under a registered document. 5. Be that as it may, the defendants 1 to 3 filed written statement contending that they purchased the suit schedule property from the plaintiff and she has no right or title over the schedule property. They are contending the suit also on the other allied grounds. While so, the impugned order shows that PW3 is an official witness appeared before the trial court on 02.11.2023 as per the orders in I.A.No.622/2023 and he was examined in chief, but on that day the defendants did not cross-examine him and therefore the matter was adjourned to 07.11.2023. On the said date also the defendants did not crossexamine the official witness and hence the court recorded crossexamination as nil. Subsequently, it appears that the petitioners/defendants filed I.A.No.50/2024 to reopen the matter and recall PW3 for cross-examination and said petition was dismissed on the ground of delay. On the said date also the defendants did not crossexamine the official witness and hence the court recorded crossexamination as nil. Subsequently, it appears that the petitioners/defendants filed I.A.No.50/2024 to reopen the matter and recall PW3 for cross-examination and said petition was dismissed on the ground of delay. However, having regard to the fact that the valuable rights of the parties are at stake and therefore, it is not apposite to deprive an opportunity to cross-examine PW3 to the petitioners/defendants, this Court is of the considered view that an opportunity should be given to the petitioners/defendants to cross-examine PW3. In the cited decision in Sayeda Peerani Begum and others v. Hyderabad Secunderabad Nai Sena Samaj and others, 2003 SCC Online AP 166 in the similar circumstances the learned Judge of common High Court of Andhra Pradesh while observing that the suit was relating to an immovable property for declaration of title and that it was not desirable to shut the parties from adducing the evidence, allowed the C.R.P. and permitted to recall PW1 for the purpose of cross-examination. 6. Accordingly, this C.R.P. No.792/2024 is allowed and the impugned order in I.A.No.50/2024 in O.S.No.852/2016 is set aside and the said petition is allowed directing the trial court to reopen the matter for cross-examination of PW3 by the petitioners/defendants. Having regard to the fact that the suit is of the year 2016, the trial court shall complete the exercise of cross-examination of PW3 within four (4) weeks from the date of receipt of a copy of this order. No costs. As a sequel, interlocutory applications pending if any, stand closed.