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2025 DIGILAW 401 (TS)

M. A. Shakeel v. B. Gyaneshwar

2025-04-23

LAXMI NARAYANA ALISHETTY

body2025
ORDER : (LAXMI NARAYANA ALISHETTY, J.) C.R.P.No.326 of 2023 is filed aggrieved by the order dated 06.12.2022 passed in I.A.No.1137 of 2022 in O.S.No.375 of 2016 by the XXV Additional Chief Jude, City Civil Court at Hyderabad. 2. C.R.P.No.329 of 2023 is filed aggrieved by the order dated 06.12.2022 passed in I.A.No.1136 of 2022 in O.S.No.375 of 2016 by the XXV Additional Chief Judge, City Civil Court at Hyderabad. 3. Since both the matters are interconnected, they are heard together and are disposed of by this common order. 4. Heard Sri A.Najeeb Khan, learned counsel for the petitioner and Sri Adesh Varma, learned counsel for the respondent. Perused the record. 5. The petitioner herein is the defendant and the respondent herein is the plaintiff in the suit. For convenience, the parties are referred as they are arrayed in the suit. 6. The brief facts that are relevant for adjudication of these petitions are that the plaintiff filed a suit vide O.S.No.375 of 2016 on the file of the XVII Senior Civil Judge, City Civil Court at Hyderabad for ejectment, recovery of arrears of rent and future mesne profits and damages against the defendant. The plaintiff is the joint owner of mulgi bearing municipal No.10-3-3-62/1, admeasuring 115 Sq.fts., situated at Mehdipatnam, Hyderabad (herein after referred as “suit schedule property”). 7. The defendant entered appearance and filed written statement and evidence on both sides i.e., the plaintiff as well as the defendant was recorded and the matter was posted for arguments. At that stage the defendant filed two applications i.e., I.A.Nos.1137 and 1136 of 2022 one to reopen the case and another to recall PW1 for further cross examination. 8. In the affidavit filed in support of these applications, the defendant averred that the plaintiff was examined as PW1 and during the cross examination, PW1 denied execution of receipts dated 15.02.2005 and 24.06.2005. Therefore, in view of the averments made by the plaintiff in the counter- affidavit, it is necessary to recall PW1 for further cross examination and thus, the defendant filed I.A.No.234 of 2022 for sending both the receipts to the handwriting expert for comparison with the admitted signatures under Section 45 of the Indian Evidence Act, 1872. 9. Therefore, in view of the averments made by the plaintiff in the counter- affidavit, it is necessary to recall PW1 for further cross examination and thus, the defendant filed I.A.No.234 of 2022 for sending both the receipts to the handwriting expert for comparison with the admitted signatures under Section 45 of the Indian Evidence Act, 1872. 9. The plaintiff filed counter in the said applications and stated that he was not disputing the execution of the receipts i.e., Exs.B7 and B8, but disputing the payment of Rs.1,30,000/- by way of cheques. The plaintiff further stated that he is only disputing the receipt of payment, covered under cheques under receipt and it is for the defendant to prove and establish honoring of cheques covered by the receipt by cogent evidence and therefore, there is no necessity to recall PW1 for further cross examination and that the applications were filed only to protract the matter. The trial Court on due consideration of reasons mentioned in the affidavit and contentions put forth by both judges, dismissed both the applications by the impugned order. Aggrieved by the same, present revisions are filed. 10. Learned counsel for the defendant/petitioner would submit that the trial Court has come to erroneous conclusion that the applications have been filed at a belated stage and further contended that the trial Court has failed to consider the fact that the plaintiff has admittedly executed receipts under Exs.B7 and B8 in the counter-affidavit and therefore, cross-examination of PW1 is required to confront the stand of the plaintiff. He would further submit that the Court has committed grave error in observing that the defendant was trying to fill up lacunae, without properly appreciating the facts and circumstances of the case. 11. Per contra, learned counsel for the plaintiff/respondent would submit that the trial Court has rightly dismissed both the applications, as the same were filed at a belated stage, when the matter was coming up for arguments. He would further submit that there is no necessity to recall PW1 for further cross examination of plaintiff, since there is no dispute with regard to Exs.B7 and B8 and plaintiff was only disputing with regard to receipt of amounts and not the signature on the receipt. He would further submit that it is for the defendant to prove payment of amounts covered under receipts. He would further submit that it is for the defendant to prove payment of amounts covered under receipts. Therefore, both the revisions are devoid of merits and therefore, liable to be dismissed. 12. A perusal of the record would disclose that there is no dispute with regard to marking of receipts dated 15.02.2005 and 24.06.2005 as Exs.B7 and B8 in the suit. The defendant has filed two applications for recalling and reopening of PW1 for cross examination only for the purpose of confronting PW1 with regard to receipts. It is pertinent to note that entire evidence of both sides have been completed and the matter was coming up for arguments, at that stage, these applications were filed. 13. It is the specific stand of the plaintiff that he is not disputing the signature on receipts however, he is only disputing the payment of amounts mentioned in the receipts, which were purportedly paid by way of cheques. It is also the contention of the plaintiff that it is for the defendant to prove that his cheques were honored under valid receipts and that the amounts were duly paid to the plaintiff. Therefore, recalling PW1 for cross-examination would serve no purpose. 14. In the considered opinion of this Court, the applications filed by the defendant are at belated stage as rightly observed by the trial Court and the party to the suit cannot be permitted to fill up lacunae, that too when the matter was coming up for arguments. Therefore, this Court does not find any reason to interfere with the impugned order passed by the trial Court and further, the petitioner failed to point out any irregularity and illegality in the order passed by the trial Court and accordingly, both the Civil Revision Petitions are dismissed. No costs. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.