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2025 DIGILAW 121 (TS)

Ramlal Agarwal v. Anise Khan

2025-03-13

LAXMI NARAYANA ALISHETTY, LAXMI NARAYANA ALISHETTY

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ORDER : Laxmi Narayana Alishetty, J. Civil Revision Petition No.2932 of 2024 is filed challenging the order, dated 15.04.2024, passed by the I Senior Civil Judge, City Civil Court, Hyderabad in I.A.No.260 of 2024 in OS.No.750 of 2017, whereunder petition filed under Section 151 CPC praying the Court to reopen the suit for the purpose of cross-examination of P.W-2 was dismissed. 2. Civil Revision Petition No.2941 of 2024 is filed aggrieved by the dismissal of application in I.A.No.261 of 2024 in O.S.No.750 of 2017 by order dated 15.04.2024 on the file of the I Senior Civil Judge, City Civil Court, Hyderabad. 3. Since the issue involved in both the Civil Revision Petitions is interconnected and the result is interdependent, both the Revision Petitions are heard together and are being disposed of by common order. 4. The revision petitioner herein is defendant No.2, respondent herein is plaintiff and respondent No.2 herein is defendant No.1 in the suit before the trial Court. 5. For convenience, hereinafter the parties will be referred to as they are arrayed in the suit. 6. Heard Sri N.Chandra Sekhar, learned counsel for the revision petitioner and Sri Mohd. Islamuddin Ansari, learned counsel for respondent No.1. Perused the entire material available on record. 7. The facts of the case, in brief, necessary for adjudication of the present Revision Petitions is that the plaintiff filed the suit for perpetual injunction against the defendants in respect of the suit schedule property, trial has commenced, P.Ws.1 and 2 were examined in chief and the case was coming for cross-examination of P.W-2 on 05.10.2023 and on the said date, since there was no representation on behalf of defendants, the matter was adjourned to 17.10.2023 finally on payment of costs; that even on 17.10.2023, there was no representation on behalf of the defendants, therefore, the right of the defendants to cross-examine P.W-2 was forfeited; and that thereafter, the matter was posted for defendants’ side evidence on several dates, i.e., on 02.11.2023, 10.11.2023, 23.11.2023 and 06.12.2023 conditionally and also on costs, however, the defendants failed to adduce evidence, as such the defendants’ side evidence was closed. Thereafter, the defendants filed the present applications. The trial Court by orders of even date i.e., 15.04.2024 dismissed both the said applications. Hence, the present Revision Petitions. 8. Thereafter, the defendants filed the present applications. The trial Court by orders of even date i.e., 15.04.2024 dismissed both the said applications. Hence, the present Revision Petitions. 8. Learned counsel for the petitioner contended that number of documents, i.e., diagnosis reports, prescriptions, discharge summary were filed, vide SR.No.2515/2024, dated 01.03.2024, evidencing the ill health of defendant No.2 and his admission to hospital several times, before the trial Court, but without noting of the same, the trial Court erroneously dismissed the applications on the ground that defendant No.2 except taking the plea of ill health, could not produce any documentary evidence to that effect, which is, in fact, contrary to the record. By contending thus, learned counsel prayed to set aside the impugned orders, as the same are perverse and contrary to record. 9. On the other hand, learned counsel for respondent No.1/plaintiff contended that though number of opportunities were given to defendant No.2 to cross-examine No.2, he failed to avail the same and when the suit was posted for arguments conditionally, the aforesaid applications were filed only to protract the matter and finally, he contended that both the Civil Revision Petitions are devoid of merits and the same are liable to be dismissed. 10. Perusal of impugned order shows that the trial Court observed that the plaintiff with an intention to delay the proceedings has waited till the matter is posted conditionally for arguments and then came up with the aforesaid two applications only to cause hardship to plaintiff. 11. It is the specific case of the defendant No.2 that on 01.03.2024, he filed number of medical documents vide SR.No.2515 of 2024 in support of his contention that he was suffering from ill-health and was under constant treatment from 19.11.2024. The medical record in the form of prescriptions, discharge summary, etc., from the years 2021-2024 indicate the health issues faced by defendant No.2 and the treatment being taken by him. However, it appears that the trial Court lost sight of the said documents and erroneously came to conclusion that defendant No.2 did not produce any medical documents in support of his plea of ill-health. 12. The medical documents, in particular, ultrasound whole abdomen report, dated 30.09.2023, filed by defendant No.2 show that defendant No.2 was diagnosed with Grade-I prostatomegaly and umbilical hernia. Here, it is apposite to note that the suit was posted for cross-examination of P.W-2 of 05.10.2023. 12. The medical documents, in particular, ultrasound whole abdomen report, dated 30.09.2023, filed by defendant No.2 show that defendant No.2 was diagnosed with Grade-I prostatomegaly and umbilical hernia. Here, it is apposite to note that the suit was posted for cross-examination of P.W-2 of 05.10.2023. Thus, just prior to 05.10.2023, defendant No.2 was diagnosed to be suffering with prostatomegaly and umbilical hernia, probably due to which he was unable to instruct his counsel for cross-examination of P.W-2. Therefore, the trial Court ought to have taken into consideration the said documents while adjudicating the aforesaid applications. 13. For the foregoing reasons, this Court is of the considered view that the trial Court erred in dismissing the applications and accordingly, the impugned orders are liable to be set aside. 14. In the result, both the Civil Revision Petitions are allowed and the impugned orders, dated 15.04.2024, passed by the I Senior Civil Judge, City Civil Court, Hyderabad in I.A.Nos.260 and 261 of 2024 in OS.No.750 of 2017, are hereby set aside and the applications in I.A.Nos.260 and 261 of 2024 stands allowed, subject to payment of costs of Rs.5,000/- (Rupees Five thousand only) payable to P.W-2 within a period of three weeks from the date of receipt of a copy of this order. On payment of such costs, the trial Court shall fix the date for cross-examination of P.W-2 and defendant No.2 shall not seek further time for cross-examination of P.W-2. 15. Pending miscellaneous applications, if any, shall stand closed. No costs.