Telangana High Court
CRP/6920/2017 of Bathini Gangaram Goud Vs Md. Taher on 31 December 2021
THE STATE OF TELANGANA AT HYDERABAD FRIDAY, THE THIRTY FiRST DAY OF DECEMBER TWO THOUSAND AND TWENTY ONE AND 1. Md. Taher, S/o Late Md.Anwar, Age 30 years, Occ: Household, Rep his mother/Natural Guardian, Saleemunnissa Begum, w/o Late Mo Between: Bathini Gangaram Goud, S/ o B. Chinnaiah, Age:63
FRIDAY, THE THIRTY FiRST DAY OF DECEMBERTWO THOUSAND AND TWENTY ONETWO THOUSAND AND TWENTY ONE
PRESENT
THE HONOURABLE DT. }USTICE CHILLAKUR [SUMALATHA]
Civil Revision Petition No. [6920 ]of [2017]
Between:
Between:Bathini Gangaram Goud, [S/ ]o B. Chinnaiah, [Age:63 ][ye_ar1 Occ: ]. [Retired]Employee, R/o Flat No. 105, Gokul Kunj [Apartments, ][St.No. ][5, ][Himayathnagar ][,]Hyderabad
...petitioner/Respondent/Defendant [No.9.]
AND1. Md. Taher, S/o Late Md.Anwar, [Age ][30 ][years, ][Occ: ][Household, ][Rep].Byhis mother/Natural Guardian, Saleemunnissa [Begum, ][w/o ][Late ][Mo]hd.Anwar, age 62years, Occ: [Business, ][R/o ][H.No. ][6-3-1242/ ][50, ][Opp. ][Raj]Bhavan Madhar Sahab Maqtha, Somaiiguda [Hyderabad.]1. Md. Taher, S/o Late Md.Anwar, [Age ][30 ][years, ][Occ: ][Household, ][Rep].Byhis mother/Natural Guardian, Saleemunnissa [Begum, ][w/o ][Late ][Mo]hd.Anwar, age 62years, Occ: [Business, ][R/o ][H.No. ][6-3-1242/ ][50, ][Opp. ][Raj]Bhavan Madhar Sahab Maqtha, Somaiiguda [Hyderabad.]
..Respondent/ Petitioner/ Plaintiff [.]
2. Aziz Begum died as per L. [R's ][(respondents ][3 ][to ][9).]
3. Abdul R1him, s/o L;te Abdul [Hameed, ][Age ][35 ][years. ][Occ: ][Employee.]
4. Abdul Jahanger, sfo Late Abdul Hameed , [Age 23 ][years,Occ: ][Business.]
, 5. Karimunnissi Begum, w/o Md. [Anwar, ][Age ][43 ][years, ][Occ: ][Housewife.]6. Afser Begum @ Afserunnissa, w/o Sheik [Mahboob, ][Age ][30 ][years, ][Occ:]Housewife.6. Afser Begum @ Afserunnissa, w/o Sheik [Mahboob, ][Age ][30 ][years, ][Occ:]Housewife.
7. Parveen Begurn, w/o Syed Suitha, Age [30 ][years, ][Occ: ][Housewife.]
8. Nafees Begiim, w/o Syi:d Khaia [Pasha, ][Age ][25 ][years, ][Occ: ][Housewife.]9. Maharunissa Begum @ Meher, w/o [Syed ][Khaja ][Pasha ], [Age ][24,]Occ:housewife.9. Maharunissa Begum @ Meher, w/o [Syed ][Khaja ][Pasha ], [Age ][24,]Occ:housewife.
(Respondents 2to9 are R/o Athvelly [Vil1age, ]Medchal [Mandal And District)](Resfondents 3 to 9 are not [necessary ][parties)]
... Responden ts/ Respondents/ Defendants.
Revision filed under Article 227 of the Constitution [of ][India, ][aggrieved ][by]Order dated 09.08.2017 in I.A.No.50 of [2077 ]it [O.S.No.2081 ][of ][2006 ][on ][the ][file ][of]the Court of the Senior Civil Judge [(FAC) ]VI [Addl. ][Senior ][Civil ]Judge [(FTC)]Medchal, Ranga Reddy District.
I.A. NO: l OF 2017(CRPMP. NO: [8895 ]OF [2017)]
Petition under Section 151 CPC praying that in the [circumstances stated]in the affidavit filed in support of the [petition, ][the ][High ][Court ][may ][be ][pleased]to stay all further proceedings in O.S.No.2081 of [2006, ][on ][the ][file ][of ][in ][the ][court]of the Senior Civil Judge (FAC) VI [Addl. ][Senior ][Civil ]Judge [(FTC) Medchai,]Ranga Reddy District, pending disposal of the above C.R.P., [in ][the interest of]justice.
Counsel for the Petitioner: Sri B.sudhakar Reddl' [Ar-rd ][Neeraja ][Reddy, Advocate]
Counsel for the Respondent No.1 :Sri Gaddam Srinivas, [Advocate']Counsel for the Respondcnt Nos.2 to 9: Not [necessary ][parties.]
The Court made the following: ORDER
H O N OU I'AB LE D T, J U S TI C E C H I [L ]LAK [U ][R ][S ][U IIT ][A,L ][A ][T ][H ][A]CIVII. REVISION PETITION No.6920 of 2017GDEB.
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1. Questionirg [the ][validity ][and ][the ][legality ][of ][the ][order ][that ][is]rendered by the )ourt of Vl Additional Senior Civil Judge, Medchal,Ranga Reddy Dr ;trict in I.A.No.50 of 2017 in O.S.No.2C8l of 2006,dated 09.08.201i, the revision petitioner, who is an'ayed as respondentNo.9 in the said r rterlocutory application, is before this Courl
2. Heard the iubmission of the learned counsel for the parties, i.e.,the leamed coun el for the revision petitioner and the leamed counselfor respondent [\,1o.1. ]Also, gave anxious consideration to theirsubmission inclu ling the applicability of the decision of this Court inthe case betwee t M.Venkataratnam Reddy Vs. P.L.Manogaran andOthersl.
3. By the sul mission of both the leamed counsel what could becuiminated is th, t a suit for declaration of title and tbr recovery ofpossession ofth, suit schedule propefty is flled by respondent No.1herein against tht revision petitioner. who is shown as defendant No.9,and others
4. Defendant No.2 and defendant No.9 i.e., revision petitionerfiled a common written statement in the suit. The trial Co',rft afterframing of issut s commenced trial. Defendant No.2 gct e;<aminedhimself as D.W- and defendant No.9 i.e., the revision petitioner filedhis affidavit in I :u of his chief:examination as D.W-2 and when thq' [zo ][r: ][(+) ][Xl"rd:z.r]
matter was [posted ]for his cross-examination, [respondent ][No.1/plaintiff]rnoved an interlocutory application [vide LA.No.5O ][of ][2017 ][seeking the]Court to eschew the evidence [of ][D.W-2 ][i.e., the revision ][petitioner.]The said application was allowed [through ][the ][impugned ][order.]Aggrieved by the same, the revision [petitioner ][is ][before ][this ][Court.]
5. The main ground urged while seeking [to ][eschew ][the evidence ][of]D.W-2 is that he was [present ]in [the ][open ][Court ][while ][D.W-l ][was]cross-examined and therefore, [he ][should ][be ][precluded ][from ][giving]evidence. Thus, in the light [ofthe ][said ][plea taken, the ][point ][that ][arises]for consideration is:
Whether the presence of a [party ][to ][the ][suit during ][the]course of cross-examination of a [witness ][precludes him]from [giving ][evidence ][before the ][Court of ][law.]
6Justifuing the plea taken through this [Revision ][Petition, ][the]leamed counsel for the revision [petitioner ][contended that no ][objection]was taken by the leamed counsel for [respondent ][No.1 ][-plaintiff]regarding the presence of the [revision petitioner ][while ][D.W- ][1 ][was]cross-examined and the revision [petitioner is not being ][examined ][as ][a]witness of defendant No.2, but he is [one ][of ][the ][parties ][to ][the suit ][and]that, each party to the suit [has ][got ][right ][to ][participate ][in ][the]proceedings and adduce evidence and the same [was ][done ][by ][the]revision petitioner and therefore, the order of the trial [Court ][is]unjustifiable.7 . Vehemently opposing the said submission, the leamed [counsel]for respondent No.l-plaintiff submitted that if [the ][revision]petitioner/defendant No.9 had got an intention to testifu [beiore ][the]
Court, he ought not to have appeared and present in thc Court hallwhile D.W-1 wa ; being cross-examined, and having heard u'hat wasasked and what vas stated by D.W- 1 during the course of his cross-examination, no\ / he cannot project himself before the Court as awitness. The lear led counsel further contended that only to fill up thelacunae and to cover the laches, the evidence ol the revisionpetitioner/defendr nt No.9 is pressed into service and therefbre, thetrial Court rightly eschewed his evidence.
8. The leame I counsel for respondent No.l /plaintiff', submittingthat when one o the witnesses is being examined, others rvho areproposed to be e (amined as witnesses should not be present in theCourt hall and th lt is the dictum of law, relied upon the decision ofthis Court in the [, ]ase between M.Venkatarutnom Redd.y (supra). Thefactual matrix of I re said case is as lbllows:-
"ln a suit 1', [,r ]perpetual injunction. rvhen D.W-l $ as bcingcross-exam ned. a person r.vho was sought to be exaurinedas D.W-3 and filed alfidavit in lieu of' his chiet--examinatio r, remained in the Court. Recording hispresence! trre trial Court held that the said witness is notentitled to lepose as a witness and thereby, eschewed hisevidence."
In the afor:said factual circumstances, this Court at para 5 ofthe order held as f, rllows:
"If a party t I a suit intends to examine more witnesses thanone, the bas c requirement is that when one ofthe witnessesis being exa nined, others who are proposed to bc examinedas witnessr i are not present in the Court. If thel arepresent, thr y would naturally become alert and llll the-lacunae, [tha ][may ][be ][left ][in ][the evidence ][of ][the person. ][u.ho ][-.-]
is already examined as a witness. The Law does not permitthis. However, exactly the same thing has happened in theinstant case. When the cross-examination of D.W. 2 was inprogress. a person who is proposed to be examined asD.W-3. r.vas present in the Court throughout. The trialCourt has taken correct vierv of thc matter. when it heldthat the evidence of D.W-3 cannot be recorded at all andthat the alfidavit filed by him in lieu of chief--examinationis liable to be eschewed liom consideration. If at allanything. the trial Court has only enfbrced a fundamentalprinciple and basic tenet ol' law ol evidence. The petitionerhas to blame hirnsell lbr not ensuring that a witness, who isproposed to be exarnined by hirn, is not in the Court, whenthe other witness is being cross-examined."
9. However, in the case on hand, the revision petitioner is a partyto the suit. He is not a witness of defendant No.2. Furthermore, thenormal course that is being followed by the Coufts of law in suchcases should also be bome in mind. Though the Code of CivilProcedure requires the list of witnesses to be filed and the evidence ofthe witnesses to be recorded on day{o-day basis, the counsels for theparties, i.e.. for the plaintiff as well as the defendant, are filing theaf'fldavits of the.parties in lieu ol their chief'-examinatior.r one by oneand after completion of evidence of one witness i.e., after filing of thechief-affidavit and after the said witness is cross-examined, thereafter,the chief-affidavit of the other witness is filed and the said witness issubjected to cross-examination. Such being the way of proceedingwith in the trial Courts due to pressure of work and for the purpose ofaccommodating the counsels, even if it is taken into consideration thatthe revision petitioner-D.W-2 was not present in the Courl hall when D.W-l was cro: s-examined, it cannot be ruled out that the certifiedcopy of deposit on of the said witness would have been taken andthereafter, the cf ief-affidavit of D.W-2 might have been filed and thenthe cross-examir ation would have been conducted. If such course wasfollowed, natural [y respondent No. l /plaintif'f might not have taken anyobjection. It is not the version of respondent No. 1-plaintiff that he hadproduced all the chief-affidavits of his witnesses and subjected all ofthem to cross-exi mination at a time. It is not being done in most of theCourts of law. T rerefore, this Court is of the view that a pany to thesuit cannot be de ried his legitimate right of putting forth his evidencebefore the Court of law. Therefore, this Court holds that the orderunder challenge ir liable to be set aside.
10. In the resul , the Civil Revision petition is allowed. l-he order ofthe Court of VI A Jditional Senior Civil Judge, Medchal, Ranga ReddyDistrict in LA.llo.50 of 2017 in O.S.No.20g1 of 2006. dated09.08.2017, is set aside. There shall be no order as to costs.I l. Pending M ;cellaneous Petitions, ifany, shall stand closed.
Sd/.T.KRISI-INA KUMARASSISTANLRI]CISTRAR//rRUE [COPY ]/ /( ..1'rSECTION OFFICER
To,
One Fair Copy to the l ton'ble [Dr. ]Justice [Chillakur ][Sumalatha]( For Her Lords dps Kind Perusal)
To,
1 The Senior CiviJudge [(FAC) ][VI ][Addl. ][Senior ][Civil ][Judge (FTC) ][Medchal,]Ranga Reddv tstrict.2 11 L.R. Copies3 The Under Secrrtary, Union of India, Ministry of Law, Justice andCompany Affai's, New Delhi.4 The Secretary, r.dvocates Associatiot"t (TG) Library, (TG) Library, Library, [[High Court ]][[tsuildings]]Judge [(FAC) ][VI ][Addl. ][Senior ][Civil ][Judge (FTC) ][Medchal,]Ranga Reddv tstrict.2 11 L.R. Copies3 The Under Secrrtary, Union of India, Ministry of Law, Justice andCompany Affai's, New Delhi.4 The Secretary, r.dvocates Associatiot"t (TG) Library, (TG) Library, Library, [[High Court ]][[tsuildings]]
4 The Secretary, r.dvocates Associatiot"t (TG) Library, (TG) Library, Library, [[High Court ]][[tsuildings]]Hyderabad.5 The Secretary, r.dvocates Association (AP) Library, High Court Library, High Court [[Builclings]]Hyderabad.5 The Secretary, r.dvocates Association (AP) Library, High Court Library, High Court [[Builclings]]
5 The Secretary, r.dvocates Association (AP) Library, High Court Library, High Court [[Builclings]]Hyclerabacl.6 One CC to Sri [[I]],.sudhakar Redc'ly And Neeraja Redtlv, Ar.lvocate [OPUC]7 One CC to Sri [[(]]addam Srinivas, Aclvocate IOPUC]Hyclerabacl.6 One CC to Sri [[I]],.sudhakar Redc'ly And Neeraja Redtlv, Ar.lvocate [OPUC]7 One CC to Sri [[(]]addam Srinivas, Aclvocate IOPUC]
[[I]]7 One CC to Sri [[(]]7 One CC to Sri [[(]]
8 Two CD Copie:
9 One Spare Cop
HIGH COURT
DATED:3L/12/2021
ORDERCRP.No.6920 of 2017
Allowing the CRR w thout Costs.
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