Smt.M.Balamani v. Myadari Laxmi

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY,THE THIRTY FIRST DAY OF DECEMBER TWO THOUSAND AND TWENTY ONE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CIVIL REVISION PETITION NO: 3440 OF 2014 Petition under Article 227 o'f lhe Constitution of lndia, aggrieved by the Order dated. 08.07.2014 in 1A.No.51212013 in OS.No.21512006 on the file of the court of Junior Civil Judge, Mahabubnagar .

Between:

Smt.m.Balamani, W/o M.Ramulu, aged about 49 years,Occ: Household, R/o 8-147121 Behind.District Hospital, Teacher's colony I\,4aha bubnagar. ...PETlTlONERl PETITIONER/DFDT.No.1 AND

1. I\,4yadari Laxml, W/o Late.Chinnaiah .aged about 55 years,Occ:Household R/o 716, Azaadnagar, Makthal (v) & (m) lvlahabubnagar District

2. Balakrishna, S/o Late.M.Chinnaiah aged about 29 years Occ: Pvt employee R/o 7-16, Azaadnagar, Makthal (v) & (m) Mahabubnagar District

3. Kum. Krishnaveni, D/o Late. M.Chinnaiah, aged about 29 years Occ:Household Fyo 7-16, Azaadnagar,lVakthal (v) & (m) lvlahabubnagar District.

4. Kum.Aruna, D/o Late.lvl.Chinnaiah aged about 25 years Occ:student Fl/o 7-16, Azaadnagar, Makthal (v) & (m) Mahabubnagar District

5. Kum.Archana, D/o Late. M.Chinnaiah aged about 25 years Occ:Student rlo 7'16, Azaadnagar, Makthal (v) & (m) Mahabubnagar District ...RESPONDENTS/ RESPONDENTS/PLAINTIFFS CRPMP. NO 4700 0F 20'14 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 stay all further proceedings in OS.No.215\2OOO pending on the file of Hon'lbe court of Junior Civil Judge, Mahabubnagar, pending disposal of CRP ' Counsel for the Petitioner :SRl. J PRABHAKAR Counsel for the Respondent Nos. 1 to 5: SRl. K SOMESWARA KUMAR The Court made the following: ORDER

TllE tlON'B ,E SRI JUSTICE A. VENKATIISIIWARA REDDY CRP No.3440 of 2014 ORDER:

1.

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

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

3.

The lear red counsel for the revision petitioner/d,:flendant No.l seeks to subn it that the trial Courl ought to have permitted the petitioner/defe rdant No. I to cross-examine PW. I with reference to his counter claim br the simple reason that the counter claim tbrms part of Ex.B.14 arC the question touching the counter claim and very much required while cross-examining the witness on Ex.B.l4 and that the Court bek w ought to have given one more opportunity to the petitioner to { rrther cross-examine PW. I on the aspect of counter claim in view of the exhibiting the Ex.B.14. Though the petitioner

A!'RJ CRP No.3440 of20l4 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 crossexamination 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 completed on26.07.2012. Later, on 05.09.2012 evidence affidavit of 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.

AVRJ CRP No.3440 ol20l4 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 crossexamination 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

AVRJ CRP No.3440 of 2014 respect of the suit schedule property through Ex.B.l4 and that the def'endant No.l has explained in her affidavit that her earlier counsel could not cross-examine PW.1 with reference to her counter claim and that it is not possible to cross-examine PW. I on Ex.B. 14 without questioning on the counter claim, I am of the considered opinion that if an opportunity is given to the defendant to further cross-examine PW.1 with reference to her counter claim, no prejudice would cause to the plaintiffs, as PW. I is already recalled for cross-examination with reference to Ex.B. l4 which is the basis for the said counter claim. 8.

The learned counsel for the respondents/plaintiffs has relied upon the principles laid in Vadiraj Naggappa Vernekar (dead) through LRs v. Sharadchandra Prabhakar Gogatet, wherein the Hon'ble Supreme Court while dealing with the proviso of Order-XVIII, Rulel7 CPC held as follows: "The power under the provisions of Order 18 Rule l7 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and reexamination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule l7 CPC. It is now well settled that the power to recall any witness under Order l8 Rule l7 CPC can be exercised by the court either on its own motion or on an application frled by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence ofthe witness which has 1 lzoooy a scc +ro

,AVRJ CIIP No.3440 of 2014 already be:n recorded but to clear any ambiguity that ma1, have arisen durj 1g the course of his examination." 9.

In the inltant case, the evidence ofplaintiffs is closed and only after closure of the plaintif'fs, evidence, evidence affidavit of defendants is 1led. Initially in the evidence of DW. l, Exs,B.1 to l3 were marked. Ihereafter, on payment of required starnp duty and penalty, the un 'egistered simple sale deed was exhibited as Ex.8.14. The Court belt w on considering the facts of the case, permitted to recall PW.1 to lross-examine with reference to Ex.B.l4 as there was no such oppon unity at the time of cross-examination of rvitness to confront this dc cument. Further, the defendant has been claiming the \ property throug I Ex.B.1 and set up a coutter claim. As the witness is being 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 the principles laid under Order-XVIII, Rule-17 CpC ancl the order impugned is liat le to be set aside.

10. In the re: ult, the Civil Revision petition is allorved and the impugned order Jated 08.07.2014 in IA No.5l2 of 2013 in OS No.215 of 2006 on the fl le of the Junior Civil Judge, Mahabubnagar, is hereby set aside and corrsequently, the IA No.5t2 of 2013 is allowed. pW.1 is recalled for fi rther cross-examination on the counter claim by the defendants and i lso on Ex.B.14. However, considering the fact that

\ AVRJ CRP No.1440 of20l4 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 to dispose of the Original Suit within six months from the date of receipt a copy of this order. Both the parties to the suit shall cooperate with the trial Court for expeditious disposal of the Original Suit, AS directed. In tl-re circumstances of the case, there shall be no order as to costs.

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

SD/.K.AMMAJI ASSISTANT B-EGISTRAR secr6K orprcEn //TRUE COPY// To,

1. TheJunior Civil Judge, Mahabubnagar.

2. One CC to SRt. J PRABHAKAR Advocate tOpUCl 3, One CC to SRt. K SOIMESWARA KUMAR Advocate tOpUCl

4. Two CD Copies

5. One Spare Copy CDL SBA\

HIGH COURT DATED:31 11211',021 I 1\ri 9lAl.€ o,...

ORDER

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^an6 i zg'rr'1!ZrjllCRP.No.3440 t>f 2014 ALLOWING T {E C,R.P Y