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2025 DIGILAW 1244 (TS)

Kalavakuntal Narayana v. B. Narsing Rao

2025-10-16

B.R.MADHUSUDHAN RAO

body2025
ORDER : 1. This present Civil Revision Petition is filed under Article 227 of the Constitution of India assailing the order, dated 14.06.2022, passed in I.A.No.193 of 2022 in O.S.No.21 of 2011 by the learned Senior Civil Judge at Nirmal. 2.1. Petitioner is the plaintiff and respondents are the defendants in the suit vide O.S.No.21 of 2011. 2.2. Petitioner has filed I.A.No.193 of 2022 under Order XVIII Rule 17 r/w under Section 151 of Civil Procedure Code to recall the Dw1 for further cross examination on his behalf. 2.3. It is mentioned in the cause title of the Civil Revision Petition that respondent Nos.1, 3 to 19 are not necessary parties. 3. It is stated in the application in I.A.No.193 of 2022 that on 04.04.2022 a memo was filed by the petitioner-plaintiff for examining of defendant No.2 as Dw1 without there being any whisper of the evidence of defendant No.1. Since he filed a written statement on his behalf without deciding the said controversy the learned trial Court proceeded to complete the examination of Dw1 (chief examination and cross examination). It is further stated that from the beginning, the defendants are not following the procedure for examination of the witness and at the time of examination of Dw1 also it has been observed by the petitioner-plaintiff that after filing the chief affidavit of Dw1, defendant Nos.8 to 18 are sailing with the co-defendants, who are alleged to have purchased the property from defendant Nos.1 to 7. Any examination of Dw1 on behalf of the defendant Nos.8 to 18 shall be before the contesting party i.e., plaintiff. In this case, the Dw1 was examined on 04.04.2022 and at the time of cross examination of Dw1, the cross examination on behalf of defendants Nos.8 to 18 shall be recorded earlier, since they are sailing with the other defendant Nos.1 to 7, then the cross examination of the contesting party i.e., petitioner-plaintiff has to be done. The said procedure is not followed and prayed to recall Dw1 for further cross examination. 4. Respondent No.2 has filed his counter contending that the petitioner-plaintiff has not raised any objection and did not place the same before the learned trial Court that the other defendants are sailing with Dw1. Hence, prayed to dismiss the same. 5. The said procedure is not followed and prayed to recall Dw1 for further cross examination. 4. Respondent No.2 has filed his counter contending that the petitioner-plaintiff has not raised any objection and did not place the same before the learned trial Court that the other defendants are sailing with Dw1. Hence, prayed to dismiss the same. 5. Learned trial Court after going through the affidavit of the petitioner-plaintiff and counter filed by respondent No.2 has dismissed the application, which is impugned in the Civil Revision Petition, holding that the counsel for the petitioner- plaintiff has cross examined Dw1 after cross examination of defendant Nos.8 to 18. Further, the cross examination of Dw1 was done on behalf of defendant Nos.11 to 14 and 18 and the cross examination of defendant Nos.8, 9 and 10 is reported as NIL. Thus, the petitioner-plaintiff has cross examined Dw1 and he has not made out any case thereby application came to be dismissed. 6. Learned counsel for the petitioner submits that the learned trial Court failed to follow the procedure as contemplated under Order XVIII Rule 3-A of Civil Procedure Code and the order passed thereon is perverse. Counsel further submits that defendant Nos.11 to 14 and 18 have cross-examined Dw1 and confronted some documents, which are marked as Ex. B6 to B11. Subsequent to the cross examination of the petitioner-plaintiff counsel, the order calls for interference of this Court and prayed to set aside the same and allow the civil revision petition. 7. Per contra, learned counsel for respondent No.2 submits that it is the petitioner-plaintiff, who has to make a request to the learned trial Court that they are reserving their right to cross-examine Dw-1 after the cross examination of sailing defendants, which is not done by the learned counsel for the petitioner before the trial Court. Hence, prayed to dismiss the Civil Revision Petition. 8. Petitioner-plaintiff has filed a suit for specific performance of the contract of sale in respect of the land to an extent Acs.3.00 guntas out of the total extent of Acs.5.25 guntas in Survey No.166 situated at Thimmapur Village, Khanapur Mandal, Adilabad District, directing defendant Nos.1 to 7 therein to execute the regular sale deed and register the same in his favour, on their failure to do so the Hon’ble Court be pleased to execute the same and also put the petitioner-plaintiff in possession of the property. 9. 9. During pendency of the suit, respondent Nos.9 to 18/defendant Nos.9 to 18 were impleaded as co-defendants as per the orders in I.A.No.138 of 2018, dated 25.07.2018. 10. The material goes to show that the petitioner-plaintiff has filed a memo, dated 31.03.2022, that the procedure contemplated under Order XVIII Rule 3-A of Civil Procedure Code has to be followed and there is no material placed before this Court with regard to the said memo whether it is considered or not or it is still pending. Respondent No.2 Counsel submits that the memo is closed by the learned Trial Court. 11. Defendant No.2 has filed his chief affidavit as Dw1 on 31.03.2022, on the same date Ex.B3 to B5 were marked and thereafter on 04.04.2022, learned counsel for the petitioner- plaintiff has cross-examined Dw1 and on the same date Dw1 was cross-examined by defendant Nos.11 to 14 and 18 and cross examination of Dw1 by defendant Nos.8 to 9 reported as NIL. 12. In the cross examination of Dw1 by defendant Nos.11 to 14 and 18 Counsel, Exs.B6 to B11 were marked. Ex.B6 is the true copy of pahani issued by Tahsildar, Khanapur in favour of the brother of Dw1. Ex.B7 is the certified copy of registered sale deed bearing document No.401/2011 at SRO, Khanapur executed by the brother of Dw1 in favour of D11. Ex.B8 is the certified copy of registered sale deed bearing document No.962/2011 of SRO, Khanapur executed by D1 in favour of D12. Ex.B9 is the certified copy of registered sale deed bearing document No.961/2011 of SRO, Khanapur executed by D1 in favour of D13. Ex.B10 is the certified copy of registered sale deed bearing document No.963 of 2011 of SRO, Khanapur executed by D1 in favour of D14 and Ex.B11 is the certified copy of registered sale deed document bearing No.1109 of 2011 of SRO, Khanapur executed by D1 in favour of D18. 13. Learned Counsel for the petitioner submits that the purpose of filing the recall application is to the extent of cross examining Dw1 in respect of Ex.B6 to Ex.B11. Learned counsel for the petitioner has placed a reliance on the judgment of the High Court of Madras in K. Padma vs. V. Selvamani and Ors. 13. Learned Counsel for the petitioner submits that the purpose of filing the recall application is to the extent of cross examining Dw1 in respect of Ex.B6 to Ex.B11. Learned counsel for the petitioner has placed a reliance on the judgment of the High Court of Madras in K. Padma vs. V. Selvamani and Ors. MANU/TN/2155/2017 wherein it is observed in para 11 as under:- The main contention of the counsel for the petitioner is that second respondent is not an adverse party to the first respondent. They have common interest and are sailing together. In the circumstances, as per Section 138 of Indian Evidence Act, second respondent has no right to cross-examine D.W.1. This contention is untenable. It is well settled that all the parties to the suit can cross-examine the witness produced by other party. The order of cross- examination by the party in the suit is the criteria. When one of the defendants is supporting the case of the plaintiff and other defendant opposing the claim, the defendant who is supporting the plaintiff must cross- examine the plaintiff witness before other defendants cross-examine the said witness. Similarly, when defendants have same interest, the witness produced by one of the defendants must be cross-examined by the defendant before such witness is cross-examined by the plaintiff. 14. During the course of arguments, the learned counsel for respondent No.2 fairly conceded that the petitioner may be permitted to cross-examine Dw1 to the extent of Ex.B6 to Ex.B11 documents. 15. As the suit filed by the petitioner-plaintiff is for specific performance of the contract and the documents were marked in the cross examination of Dw1 by defendant Nos.11 to 14 and 18, who are the subsequent purchasers of the plaint schedule property. The reasons which are mentioned by the petitioner in the affidavit are bonafide and deserves for consideration. It is made clear that the cross examination of Dw1 should be confined to the extent of Ex.B6 to Ex.B11 only. 16. On perusal of the order passed by the learned trial Court in para 9, the observation made thereon is not in accordance with the cross examination of Dw1, wherein it is recorded that the counsel for the petitioner-plaintiff has cross examined Dw1, after cross examination of defendant Nos.8 to 18 is incorrect and the same requires interference of this Court. 17. 17. In view of the aforesaid reasons, this Civil Revision Petition is allowed by setting aside the order passed in I.A.No.193 of 2022 in O.S.No.21 of 2021, dated 14.06.2022 by the learned trial Court. The petitioner is permitted to cross examine Dw1 to the extent of the documents as indicated above. However, as the suit of the year 2011, the learned trial Court has to expedite the disposal of O.S.No.21 of 2011 as early as possible within a period of nine (09) months from the date of receipt of a copy of this order. There shall be no order as to costs. Pending miscellaneous applications, if any, shall stand closed.