Smt. Gurram Prameela, v. Gurram Yadamma,

THE HON'BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.3433 OF 2017

O R D E R

The petitioner in this civil revision petition filed under Article 227 of the Constitution is the plaintiff in O.S.No.494 of 2012 on the file of the learned VII Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar. The said suit was filed by her for declaration of title and for a permanent injunction restraining the defendant from interfering with her possession and enjoyment of the suit schedule property. After judgment was reserved by the trial Court in the said suit, the defendant filed I.A.No.304 of 2017 therein seeking re-opening of the case to enable her to cross-examine P.W.1. She also filed I.A.No.305 of 2017 in the suit seeking re-call of P.W.1 for such cross-examination. By order dated 13.04.2017 passed in I.A.No.304 of 2017 in O.S.No.

494 of 2012, the trial Court conditionally allowed both the applications imposing costs of Rs.1,000/- to the plaintiff in each petition. Surprisingly, no separate order to this effect was passed by the trial Court in I.A.No.305 of 2017 in O.S.No.494 of 2012. Aggrieved by the aforestated order passed in I.A.No.304 of 2017 in O.S.No.494 of 2012, the plaintiff is before this Court. Despite service of notice, the respondent herein, the defendant in the suit, did not choose to enter appearance before this Court either in person or through learned counsel.

Heard Sri G.Vasudeva Reddy, learned counsel for the petitioner-plaintiff.

Parties shall hereinafter be referred to as arrayed in the suit. The record reflects that an Advocate-Commissioner was appointed on 25.10.2016 by the trial Court for recording the cross-

examination of P.W.1. She was required to submit her report on or before 05.12.2016. However, the Advocate-Commissioner filed report dated 26.11.2016 stating that though the counsel for the plaintiff and P.W.1 were present on 26.11.2016, being the date fixed by her for recording the cross-examination of P.W.1, neither the defendant nor her counsel was present. As they failed to respond to her notice, she closed the proceedings without recording the cross-examination of P.W.1. It appears that the matter was thereafter posted for the defendant's evidence on 19.01.2017, but as there was no representation for her on the said day, the trial Court adjourned the matter to 22.02.2017 giving a last chance to the defendant to adduce evidence. Again, on 22.02.

2017, there was no representation for the defendant and the trial Court closed the evidence and posted the matter for arguments on 10.03.2017. The plaintiff filed written arguments on 10.03.2017 and the matter was adjourned to 17.03.2017 for the defendant's arguments. On the said date, as there was no representation for the defendant, the trial Court recorded that the defendant's arguments were deemed to have been heard and reserved judgment.

While so, in the affidavit filed in support of the subject I.A., the defendant stated that the matter was posted on 22.02.2017 for crossexamination of P.W.1 but on that day, due to ill-health, she could not contact her counsel to give instructions and he therefore failed to attend the Court for cross-examining P.W.1. According to her, owing to this failure, the trial Court closed the cross-examination of P.W.1. She stated that such failure on her part and her counsel was neither intentional nor wanton and sought re-opening of the case to enable her to cross-examine P.W.1.

The plaintiff filed a detailed counter in response setting out the sequence of events. She further stated that after the AdvocateCommissioner filed her report informing the Court that the defendant did not come forward to cross-examine P.W.1, the matter was adjourned to 02.01.2017 to enable the defendant to cross-examine P.W.1 in Court upon payment of costs of Rs.1,000/-. However, on 02.01.201, though P.W.1 was present, the defendant did not choose to cross-examine her. The trial Court accordingly noted that the defendant had no interest to cross-examine the witness and treated the cross-examination of P.W.1 as NIL. As the plaintiff reported that there was no further evidence to be adduced on her behalf, the matter was adjourned for the defendant's evidence and posted on 19.01.2017. The plaintiff therefore stated that the claim of the defendant that the matter was posted on 22.02.2017 for crossexamination of P.W.1 and that she failed to do so on the said day due to ill-health was contrary to the record.

Upon consideration of the aforestated pleadings in the I.A., the trial Court passed the order dated 13.04.2017, presently under revision. Perusal thereof reflects that the trial Court recorded that whatever the plaintiff had mentioned in the counter was borne out by the record and that the defendant was callous and not at all diligent, despite ample opportunity being given to her to cross-examine P.W.1 and thereafter lead evidence. The trial Court noted that the subject I.A. was filed at the stage of arguments, but being of the opinion that as the Court of the first instance, it should not shut the door upon the defendant denying her an opportunity to put up a defence, the trial Court allowed the said application and also the other application

in I.A.No.305 of 2017 filed in the suit for re-call of P.W.1, by imposing costs of Rs.1,000/- in each petition.

The manner in which the trial Court dealt with the I.As. leaves a lot to be desired. To begin with, the fact that the common order was passed in both I.As. but only in the shape of an order in I.A.No.304 of 2017 in O.S.No.494 of 2012 reflects poorly upon the level of application of mind by the trial Court. That apart, the trial Court failed to take note of the factual misrepresentation made by the defendant in her affidavit filed in support of the I.A. The record bears out that the matter was not posted on 22.02.2017 for crossexamination of P.W.1. The matter was listed on 19.01.2017 for the defendant's evidence after closure of the plaintiff's evidence on an earlier date and as there was no representation for the defendant even on 19.01.2017, it was directed to be listed on 22.02.

2017 as a last chance to enable the defendant to adduce evidence. On 22.02.2017, again there was no representation for the defendant and her evidence was accordingly closed. Therefore, the foundation on the basis of which the defendant filed the I.A. was factually incorrect. Further, her claim of ill-health, which prevented her from instructing her counsel on 22.02.2017, was not supported by any evidence. Despite the same, the trial Court was carried away by misguided sympathy and set at naught all that had happened in the suit up to that date by giving an opportunity to the defendant again. The sequence of events, as set out supra, clearly demonstrates that the defendant was shockingly negligent and careless in contesting the suit proceedings.

A party who is not diligent in this regard cannot be extended indulgence and sympathy for the mere asking, as has been done in the case on hand.

defendant all through, as manifested by the docket proceedings in the suit, clearly disentitled her from seeking another opportunity to contest the suit proceedings. All the more so, when the judgment had already been reserved in the suit on 17.03.2017. The order under revision is therefore unsustainable on facts and in law. The Civil Revision Petition is accordingly allowed setting aside the order dated 13.04.2017 passed by the learned VII Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar, in I.A.No.304 of 2017 in O.S.No.494 of 2012. Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. No order as to costs.

_____________________ SANJAY KUMAR,J 11th AUGUST, 2017 PGS