CRP/3440/2014 of Smt.m.Balamani Vs Myadari Laxmi on 31 December 2021

ORDER:

1. This cir il revision petition is frled by the petitioner/defendantNo.l under Ar icle 227 of the Constitution of India, assailing the orderdated 08.07.2( l4 in IA No.512 of 2013 in OS No.2l5 ol2tJ06 on thefile of the Juni rr Civil Judge, Mahabubnagar.

2. The pet tioner/defendant has filed IA No.512 ol' 2013 underOrder-XVlII, tule- 17 read with Section 151 o1' the C vil ProceclureCode to recal PW. I fbr further cross-examin ation on his counterclairn and on I .x.B.14. This application was pallly allorved, recallingPW. I only for the purpose of confronting Ex.B.l4 ancl rejecting theclaim of the pt titioner to recall PW. 1 for further cross-eramination onhis counter c1a m.

3. The lear red counsel for the revision petitioner/d,:flendant No.lseeks to subn it that the trial Courl ought to have [permitted ]thepetitioner/defe rdant No. I to cross-examine PW. I with reference to hiscounter claim br the simple reason that the counter claim tbrms partof Ex.B.14 arC the question touching the counter claim and verymuch required while cross-examining the witness on Ex.B.l4 and thatthe Court bek w ought to have given one more opportunity to thepetitioner to { rrther cross-examine PW. I on the aspect of counterclaim in view of the exhibiting the Ex.B.14. Though the petitioner has given specific reason [to recall ][PW. ][l, ][the ][Court below ][has ][failed ][to]appreciate the same [and ][partly ][allowed ][the ][petition permitting ][to]cross-examine PW.1 only [with ][reference to Ex.B.14.]

4. Per contra, the leamed counsel [for ][the ][respondents/plaintiffs]contends that the Original [Suit ][was ][filed ][in ][the ][year 2006 and ][the]defendants are trying to [stall ][the proceedings ][in ][one ][way or the ][other']There is no [justification ][in their ][request ][for ][further ][cross-examination]of PW.l and there is [no illegality ][in ][the ][order ][impugned ][and ][that]PW. I may be recalled only [for ][the ][limited ][purpose ][of ][cross-]examination with reference to [Ex.B ][14, which was ][exhibited]subsequent to the comptetion [of ][cross-examination ][of ][PW' ][1 ]'

5. The Original Suit was [filed ][tbr ][declaration ][of title ][and recovery]of possession in the [year ][2006. ][The ][defendant ][No. ][I ][filed ][the ][written]statement on 27.10.2006. [Thereafter, ][issues ][wete ][settled. ][On ][behalf]of the plaintiffs, PW. I [was ][examined. His ][cross-examination was ][also]on26.07.2012. [Later, on ][05.09.2012 evidence ][affidavit ][of]completed DW. l, petitioner herein [was ][filed ][and ][that ][on ][05.09'2012 ][the]documents were [tnarked ][as ][Exs.B.l to ][B.13. ][Thereafter, ][the ][matter]was adjoumed for determination [of ][stamp ][duty ][on ][the ][document ][dated]05.05.1997. Later, on [2O.O9.2O\? ][stamp ][duty ][was paid ][and ][on]03.10.2012 the said document [was ][exhibited ][as ][Ex.B.l4 ][subject ][to ][the]objcction ol the [plaintills.]

6. It is true t tat after one year six months of cross-examirration [of]PW.1, the appli(ation in IA No.512 [of ][2013 was ][filed ][to ][recall ][PW. ][I]for further cross [.examination ]with reference to [counter ][claim ][as ][well]as with referenc : to Ex.B. 14. As [per ]the averments [in ][the ][attrdavit]filed in suppor of the application in IA No.5l2 [of ][20 ][13, ][it ][is]mentioned by tf e petitioner/def'endant No.l that [there ][l'rts ][change ][ot']counsel subsequ rnt to the cross-examination ol [PW. ]I [and ][that ][certain]facts were not er icited in the cross-examination ol'PW.l bv [the ][earlier]counsel and nc the new counsel has advised [lbr ][firrther ][cross-]examination on -he counter claim, more so, [in ][view ][of ][erhibiting ][the]document Ex.B 14 to avoid any technical [objections, ][it ][is ][just ][and]essential to furtl er cross-examine [PW.1 ][with ][ret-erellce ][to the ][counter]clairr.

7 . On a stu, iied examination of the order [impugned, ][the ][Cotrrt]below has not c( nsidered about the [request ][of ][the petitioner/d ][efbndant]No. I for furthe' cross-examination on [the ][counter ][clarm ][but ][only]considered his request to cross-examine [PW.l ][rvith ][ref'erence ][to]Ex.B.l4. Ex.B l4 is a simple sale deed [under ][which the ][dei'endant]No.l is claimir g to have [purchased ]the [said ][propeftv. ][[t ][is ][an]admitted fact th I though the said [document ][was ][filed ][along ][with ][the]written statemer t, it was not exhibited till [03. 10.20 ][I ][2, ][whereas ][the]cross-examinati, [,n ]of PW. I was completed [by ][26.07 ][.2012. ][The ][Court]below has recall :d PW. I for cross-examination [only ][with ][reference ][to]Ex.B.14. But, since the defendant [has set ]up [a ][counter ][claim ][in]

respect of the suit schedule property through Ex.B.l4 and that thedef'endant No.l has explained in her affidavit that her earlier counselcould not cross-examine PW.1 with reference to her counter claim andthat it is not possible to cross-examine PW. I on Ex.B. 14 withoutthat it is not possible to cross-examine PW. I on Ex.B. 14 withoutquestioning on the counter claim, I am of the considered opinion thatif an opportunity is given to the defendant to further cross-examineif an opportunity is given to the defendant to further cross-examinePW.1 with reference to her counter claim, no prejudice would cause tothe plaintiffs, as PW. I is already recalled for cross-examination withthe plaintiffs, as PW. I is already recalled for cross-examination withreference to Ex.B. l4 which is the basis for the said counter claim.

8. The learned counsel for the respondents/plaintiffs has reliedupon the principles laid in Vadiraj Naggappa Vernekar (dead) throughLRs v. Sharadchandra Prabhakar Gogatet, wherein the Hon'bleSupreme Court while dealing with the proviso of Order-XVIII, Rule-l7 CPC held as follows:

"The power under the provisions of Order 18 Rule l7 CPC is tobe sparingly exercised and in appropriate cases and not as ageneral rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. Thatis not the scheme or intention of Order 18 Rule l7 CPC.

It is now well settled that the power to recall any witness underOrder l8 Rule l7 CPC can be exercised by the court either on itsown motion or on an application frled by any of the parties to thesuit, but as indicated hereinabove, such power is to be invokednot to fill up the lacunae in the evidence ofthe witness which has 1 lzoooy a scc +rolzoooy a scc +ro already be:n recorded but to clear any ambiguity that ma1, havearisen durj 1g the course of his examination."

9. In the inltant case, the evidence ofplaintiffs is closed and onlyafter closure of the plaintif'fs, evidence, evidence affidavit ofdefendants is 1led. Initially in the evidence of DW. l, Exs,B.1 to l3were marked. Ihereafter, on payment of required starnp duty andpenalty, the un 'egistered simple sale deed was exhibited as Ex.8.14.The Court belt w on considering the facts of the case, permitted torecall PW.1 to lross-examine with reference to Ex.B.l4 as there wasno such oppon unity at the time of cross-examination of rvitness toconfront this dc cument. Further, the defendant has been claiming theproperty throug I Ex.B.1 and set up a coutter claim. As the witness isbeing recalled for cross-examination on Ex.B.l4 il' he is cross_examined with ['eference ]to his counter claim in addition to Ex.B. 14,no prejudice wc uld cause to the plaintiffs. In that view of the matter,the trial Court I as failed to appreciate the f-acts of the case with theprinciples laid under Order-XVIII, Rule-17 CpC ancl the orderimpugned is liat le to be set aside.

10. In the re: ult, the Civil Revision petition is allorved and theimpugned order Jated 08.07.2014 in IA No.5l2 of 2013 in OS No.215of 2006 on the fl le of the Junior Civil Judge, Mahabubnagar, is herebyset aside and corrsequently, the IA No.5t2 of 2013 is allowed. pW.1is recalled for fi rther cross-examination on the counter claim by thedefendants and i lso on Ex.B.14. However, considering the fact that the Original Suit was flled [in ]the [year ][2006, ][and ][it ][is pending ][tbr ][the]last ntore than 15 years, the trial Court shall make every endeavour todispose of the Original Suit within six months from the date of receipta copy of this order. Both the parties to the suit shall cooperate withthe trial Court for expeditious disposal of the Original Suit,ASdirected. In tl-re circumstances of the case, there shall be no order as tocosts.

I 1. Miscellaneous applications, if any pending in this revisionpetition shall stand closed.petition shall stand closed.

HIGH COURT

DATED:31 11211',021

I1[\ri ][9lAl.€]o,...ORDER-' ^an6i zg'rr'1!Zrjll-CRP.No.3440 [t>f ][2014]

ALLOWING [T ]{E [C,R.P]

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