CRP/4123/2015 of Gadapa Nageshwar Vs Nuthi Thirupathi on 31 December 2015

ORDER:

Heard learned Counsel for the petitioner and learnedcounsel for the respondents.

2. The petitioner is plaintiff in O.S.No.125 of 2013 on the fileof the Principal Senior Civil Judge, Mancherial. He filed the saidsuit for perpetual injunction restraining the defendants frominterfering with the suit schedule land admeasuring 740 sq yrds inSy.No.271 situated at Mancherial revenue village, MancherialMunicipality, Adilabad District.

3. Along with the suit, he filed 17 documents. He filed theaffidavit in lieu of chief examination on 18.02.2015. On19.02.2015, when the case was called, the counsel for the plaintiffwas absent. In the absence of the counsel for the plaintiff, thewitness was called to the witness box and was asked to deposewithout taking into consideration the affidavit filed in lieu of chiefexamination. In the absence of the counsel, the contents of thechief affidavit were not taken on file and 17 documents, whichwere filed with the plaint and which were indicated in the affidavitfiled in lieu of chief examination, were not marked. The counselfor the defendants was also absent on 19.02.2015, and hence, nocross-examination was done and cross-examination of PW.1 wasrecorded as NIL. Thereafter, when the plaintiff filed I.A. No.448 of2015 on 29.04.2015, the same was allowed on 06.08.2015. Thesaid application was filed to reopen the case to adduce furtherevidence of the plaintiff. On 06.08.2015 itself PW.2 and PW.3

were examined and the case was posted to 13.08.2015. On13.08.2015, PW.2 was cross-examined and PW.3 was calledabsent. PW.3 was cross-examined on 21.08.2015. The presentapplication filed by the petitioner on 24.08.2015 to recall PW.1 toadduce his further chief examination and to mark his documents,was dismissed without even numbering the said petition on03.09.2015. Challenging the same, the present civil revisionpetition is filed.

4. The docket proceedings revealed that on 03.09.2015itself, the plaintiff side evidence was closed and it was posted todefendant side evidence to 18.09.2015. The counsel for thedefendants reported no evidence on behalf of defendants on18.09.2015, and the case was posted to 28.09.2015. The counselfor the plaintiff filed a petition seeking adjournment on the groundthat he preferred a revision against orders in CRP No.1123 of2015, dated 03.09.2015 and since no stay was granted, it wasadjourned to 05.10.2015. On 05.10.2015, the counsel for theplaintiff filed a copy of the order in CRPMP No.5471 of 2015indicating the grant of stay by this Court up to 30.10.2015 and thecase was posted to 05.11.2015, and on that day, the counsel forthe plaintiff was heard and judgment reserved.

5. The above events clearly show that the learned judgeproceeded with the case in undue haste without following properprocedure while recording the evidence of the plaintiff.

6. In the affidavit filed to recall PW.1 to adduce his furtherchief examination and to mark his documents it is categoricallystated in para-4 as follows:

“…I further submit that, I was examined by this Honourable Court on 19.02.2015 orally as PW.1 and nodocuments were marked on my behalf as my counsel wasnot good at his health due to sudden death of his mother assuch I myself examined as PW.1 but the documents were notmarked and thereafter, I filed a petition to adduce my furtherevidence vide IA No.448/2015 and said petition was allowed,but I am not permitted to adduce my further chief examinationand to get my documents but, my witnesses were examinedas PWs.2 and 3 and the Honorable Court objected me toadduce my further chief examination and posted the case to03.09.2015 for my further evidence as I have not asked torecall me to adduce my further chief examination as it islacking in my prayer portion in petition. As such I amconstrained to file the present petition to recall me to adducemy further chief examination and to get mark the documentsin support of my case.

I further submit that the Honourable Court has got widepowers to recall me to adduce my further chief examinationand to get mark my documents at this juncture and noprejudice will be caused to other side and if I am not recalledto adduce my further chief examination at this juncture I willbe put to irreparable loss and hardship, which cannot becompensated later and I will be deprived of my legal right toadduce my evidence in support of my case and my furtherchief examination is compulsory to dispose the caseeffectively. It is further submitted that, the case is posted to03.09.2015 for my further evidence..”

7. The learned judge did not advert to the fact of non-marking of the documents in spite of availability of the documentsin the record, but recorded that PW.1 was examined on 19.02.2015and when his evidence was completed on that day, the question offurther examination does not arise. The learned judge should haveseen that on 19.02.2015 the affidavit filed in lieu of chiefexamination was not taken into consideration and the witness wasexamined by the court in the absence of counsel for the plaintiff. This Court is not in a position to understand the anxiety of thecourt to examine the party in the absence of the counsel without granting time and without putting the affidavit to the party. If thecounsel was absent and the court wanted to go ahead with theexamination of PW.1, the court should have drawn attention of thewitness to the affidavit filed in lieu of chief examination and noattempt was made in that regard. Ultimately, the application wasdismissed by holding as follows:

“..The present petition is recalling the witness forfurther chief examination. Sec.138 of Indian Evidence Actand Order 18 Rule 17 CPC, recalling the witness for furtherchief examination without cross examination, the question ofcalling him as the witness for further chief examination formarking documents without completing his cross examinationdoes not arise. The question of marking of documents alsodoes not arise. Recalling of witness for further chiefexamination to mark documents not filed in the court whiledeposing his chief examination. Here, the case on hand, thedefendants are not cross examined the witness, therefore, thequestion of recalling the witness for further chief examinationdoes not arise as it is hit u/sec.138 of Indian Evidence Act. Ithe foregoing discussion, the point is answered against thepetitioner. Accordingly, the petition is dismissed…”

8. The observation of the Court that no documents werefiled cannot be appreciated as the perusal of the plaint itselfindicates 17 documents and those documents were referred in theaffidavit filed in lieu of chief examination. A serious miscarriage ofjustice occurred due to the action of the learned Principal JuniorCivil Judge, in examining the party on his own in the absence ofthe counsel on 19.02.2015 without referring to the affidavit filed inlieu of chief examination.

9. In these circumstances, the impugned order dated03.09.2015 is set aside and PW.1 shall be recalled for his chiefexamination on the basis of the affidavit filed by him and be allowed to mark the documents. He shall allowed to be cross-examined by the defendants and after consideration of the saidevidence only, the suit shall be disposed of.

9. Accordingly, the Civil Revision Petition is allowed to theextent indicated above. There shall be no order as to costs. As asequel, miscellaneous petitions, if any pending in this petition, shallstand closed.

_______________________________

A. RAMALINGESWARA RAO, J

Date: 31.12.2015

gvl