CRP/6523/2012 of Sri V.Narayana Reddy, Vs Sri Y.Gopinath, on 31 December 2012

ORDER:

In this civil revision petition assailed order dated 20.7.2012passed in I.A. No.1598 of 2012 (I.A) in O.S.No.2807 of 2007 on the file of the Court of VIII Additional Senior Civil Judge, Ranga Reddy Districtat L.B.Nagar, Hyderabad.

The petitioner herein is also the petitioner in the I.A. and seconddefendant in the suit, whereas the first respondent herein is also thefirst respondent in the I.A and plaintiff in the suit, and the secondrespondent herein is also the second respondent in the I.A. and firstdefendant in the suit. For convenience sake, I refer the parties as theyare arrayed in the I.A.

The petitioner filed the I.A. under Order XVIII Rule 17 of the Codeof Civil Procedure, 1908 (CPC) to recall himself (P.W.1) having filedhis additional affidavit in lieu of his additional chief examination on theground that the suit was filed for specific performance of agreement ofsale and injunction against the petitioner and second respondent thatin his affidavit filed in lieu of his chief examination at the time ofcommencement of trial, due to oversight he did not pray for the specificperformance of the agreement of sale and permanent injunction andhe just stated that he was the owner of the suit schedule propertywhereas in fact his examination was completed and Exs.A1 to A13were marked on his behalf. Hence the petition was filed.

The claim of the second respondent is that when already theexamination of the petitioner as P.W.1 was completed, the question offiling fresh affidavit with different prayer would not arise and in anycase should not be allowed and if it is allowed, prejudice would becaused to him. In that context, the second respondent has relied upona decision in Vadiraj Naggappa Vernekar (dead) through L.Rs v Sharadchandra Prabhakar Gogate[[1]].

What is important here is that in the plaint the prayer is to grantspecific performance of the agreement of sale and for injunction inrespect of the suit schedule property. Therefore by filing the suit itselfthe case of the petitioner was made clear. He was supposed to file theaffidavit accordingly earlier. Therefore, it is very clear that by mistakeproper prayer was not taken in his earlier affidavit filed in lieu of his chief examination. Thereby rightly he filed the subject affidavit andprayed to recall him for his further examination. By doing so noprejudice would be caused to the respondents. What is important isthat proper administration of justice should be done to both the parties. The plea taken cannot be dismissed on flimsy grounds.

In the decision cited, it was sought to recall a witness for hisfurther examination on the ground that additional evidence has to berecorded. But it was found that no new evidence was discovered to doso. In fact only after knowing certain lapses, such measures weretaken. Under those circumstances, it was held that no case was madeout for recalling the witness. No such circumstances existin thepresent case to apply the same analogy. I do not find any grounds tointerfere with the order passed by the Court below.

In the result, the civil revision petition is dismissed.Miscellaneous petitions pending if any shall stand closed.

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(G.KRISHNA MOHAN REDDY, J)

December 31, 2012.YS

[1](2009) 4 SCC 410