Bathini Gangaram Goud v. Md. Taher

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY, THE THIRTY FiRST DAY OF DECEMBER TWO THOUSAND AND TWENTY ONE PRESENT THE HONOURABLE DT. }USTICE CHILLAKUR SUMALATHA Civil Revision Petition No. 6920 of 2017 Between:

Bathini Gangaram Goud, S/ o B. Chinnaiah, Age:63 ye_ar1 Occ: . Retired Employee, R/o Flat No. 105, Gokul Kunj Apartments, St.No. 5, Himayathnagar , Hyderabad ...petitioner/Respondent/Defendant No.9.

AND

1. Md. Taher, S/o Late Md.Anwar, Age 30 years, Occ: Household, Rep his mother/Natural Guardian, Saleemunnissa Begum, w/o Late Mo .By hd.

Anwar, age 62years, Occ: Business, R/o H.No. 6-3-1242/ 50, Opp. Raj Bhavan Madhar Sahab Maqtha, Somaiiguda Hyderabad. ..Respondent/ Petitioner/ Plaintiff .

2. Aziz Begum died as per L. R's (respondents 3 to 9).

3. Abdul R1him, s/o L;te Abdul Hameed, Age 35 years. Occ: Employee.

4. Abdul Jahanger, sfo Late Abdul Hameed , Age 23 years,Occ: Business.

5. Karimunnissi Begum, w/o Md. Anwar, Age 43 years, Occ: Housewife.

6. Afser Begum @ Afserunnissa, w/o Sheik Mahboob, Age 30 years, Occ: Housewife.

7. Parveen Begurn, w/o Syed Suitha, Age 30 years, Occ: Housewife.

8. Nafees Begiim, w/o Syi:d Khaia Pasha, Age 25 years, Occ: Housewife.

9. Maharunissa Begum @ Meher, w/o Syed Khaja Pasha , Age 24, Occ:housewife.

(Respondents 2to9 are R/o Athvelly Vil1age, Medchal Mandal And District) (Resfondents 3 to 9 are not necessary parties) ... Responden ts/ Respondents/ Defendants.

Revision filed under Article 227 of the Constitution of India, aggrieved by Order dated 09.08.2017 in I.A.No.50 of 2077 it O.S.No.2081 of 2006 on the file of the Court of the Senior Civil Judge (FAC) VI Addl. Senior Civil Judge (FTC) Medchal, Ranga Reddy District.

I.A. NO: l OF 2017(CRPMP. NO: 8895 OF 2017) 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 to stay all further proceedings in O.S.No.2081 of 2006, on the file of in the court of the Senior Civil Judge (FAC) VI Addl. Senior Civil Judge (FTC) Medchai, Ranga Reddy District, pending disposal of the above C.R.P., in the interest of justice.

Counsel for the Petitioner: Sri B.sudhakar Reddl' Ar-rd Neeraja Reddy, Advocate Counsel for the Respondent No.1 :Sri Gaddam Srinivas, Advocate' Counsel for the Respondcnt Nos.2 to 9: Not necessary parties. The Court made the following: ORDER

{ DT.CSL. J CRP.Na 6920 of20l7 -) H O N OU I'AB LE D T, J U S TI C E C H I L LAK U R S U IIT A,L A T H A CIVII. REVISION PETITION No.6920 of 2017 GDEB.

1.

Questionirg the validity and the legality of the order that is rendered by the )ourt of Vl Additional Senior Civil Judge, Medchal, Ranga Reddy Dr ;trict in I.A.No.50 of 2017 in O.S.No.2C8l of 2006, dated 09.08.201i, the revision petitioner, who is an'ayed as respondent No.9 in the said r rterlocutory application, is before this Courl 2.

Heard the iubmission of the learned counsel for the parties, i.e., the leamed coun el for the revision petitioner and the leamed counsel for respondent \,1o.1. Also, gave anxious consideration to their submission inclu ling the applicability of the decision of this Court in the case betwee t M.Venkataratnam Reddy Vs. P.L.Manogaran and Othersl.

3.

By the sul mission of both the leamed counsel what could be cuiminated is th, t a suit for declaration of title and tbr recovery of possession ofth, suit schedule propefty is flled by respondent No.1 herein against tht revision petitioner. who is shown as defendant No.9, and others 4.

Defendant No.2 and defendant No.9 i.e., revision petitioner filed a common written statement in the suit. The trial Co',rft after framing of issut s commenced trial. Defendant No.2 gct e;<amined himself as D.W- and defendant No.9 i.e., the revision petitioner filed his affidavit in I :u of his chief:examination as D.W-2 and when thq ' zo r: (+) Xl"rd:z.r Za

D..CSL. J CRP.No.6920 of 2017 \ matter was posted for his cross-examination, respondent No.1/plaintiff rnoved an interlocutory application vide LA.No.5O of 2017 seeking the Court to eschew the evidence of D.W-2 i.e., the revision petitioner. The said application was allowed through the impugned order. Aggrieved by the same, the revision petitioner is before this Court. 5.

The main ground urged while seeking to eschew the evidence of D.W-2 is that he was present in the open Court while D.W-l was cross-examined and therefore, he should be precluded from giving evidence. Thus, in the light ofthe said plea taken, the point that arises for consideration is:

Whether the presence of a party to the suit during the course of cross-examination of a witness precludes him from giving evidence before the Court of law. Justifuing the plea taken through this Revision Petition, the leamed counsel for the revision petitioner contended that no objection was taken by the leamed counsel for respondent No.1 -plaintiff regarding the presence of the revision petitioner while D.W- 1 was cross-examined and the revision petitioner is not being examined as a witness of defendant No.2, but he is one of the parties to the suit and that, each party to the suit has got right to participate in the proceedings and adduce evidence and the same was done by the revision petitioner and therefore, the order of the trial Court is unjustifiable.

7 .

Vehemently opposing the said submission, the leamed counsel for respondent No.l-plaintiff submitted that if the revision petitioner/defendant No.9 had got an intention to testifu beiore the

Dr ('SL . J ( llP \o.692t) oJ'2017 Court, he ought not to have appeared and present in thc Court hall while D.W-1 wa ; being cross-examined, and having heard u'hat was asked and what vas stated by D.W- 1 during the course of his crossexamination, no\ / he cannot project himself before the Court as a witness. The lear led counsel further contended that only to fill up the lacunae and to cover the laches, the evidence ol the revision petitioner/defendr nt No.9 is pressed into service and therefbre, the trial Court rightly eschewed his evidence.

8.

The leame I counsel for respondent No.l /plaintiff', submitting that when one o the witnesses is being examined, others rvho are proposed to be e (amined as witnesses should not be present in the Court hall and th lt is the dictum of law, relied upon the decision of this Court in the , ase between M.Venkatarutnom Redd.y (supra). The factual matrix of I re said case is as lbllows:- "ln a suit 1', ,r perpetual injunction. rvhen D.W-l $ as bcing cross-exam ned. a person r.vho was sought to be exaurined as D.W-3 and filed alfidavit in lieu of' his chiet-- examinatio r, remained in the Court. Recording his presence! trre trial Court held that the said witness is not entitled to lepose as a witness and thereby, eschewed his evidence."

In the afor:said factual circumstances, this Court at para 5 of the order held as f, rllows:

"If a party t I a suit intends to examine more witnesses than one, the bas c requirement is that when one ofthe witnesses is being exa nined, others who are proposed to bc examined as witnessr i are not present in the Court. If thel are present, thr y would naturally become alert and llll the -lacunae, tha may be left in the evidence of the person. u.ho -.-

\ Dr.CSL, J CRP.No.692A of2AJ7 is already examined as a witness. The Law does not permit this. However, exactly the same thing has happened in the instant case. When the cross-examination of D.W. 2 was in progress. a person who is proposed to be examined as D.W-3. r.vas present in the Court throughout. The trial Court has taken correct vierv of thc matter. when it held that the evidence of D.W-3 cannot be recorded at all and that the alfidavit filed by him in lieu of chief--examination is liable to be eschewed liom consideration. If at all anything. the trial Court has only enfbrced a fundamental principle and basic tenet ol' law ol evidence. The petitioner has to blame hirnsell lbr not ensuring that a witness, who is proposed to be exarnined by hirn, is not in the Court, when the other witness is being cross-examined."

9.

However, in the case on hand, the revision petitioner is a party to the suit. He is not a witness of defendant No.2. Furthermore, the normal course that is being followed by the Coufts of law in such cases should also be bome in mind. Though the Code of Civil Procedure requires the list of witnesses to be filed and the evidence of the witnesses to be recorded on day{o-day basis, the counsels for the parties, i.e.. for the plaintiff as well as the defendant, are filing the af'fldavits of the.parties in lieu ol their chief'-examinatior.r one by one and after completion of evidence of one witness i.e., after filing of the chief-affidavit and after the said witness is cross-examined, thereafter, the chief-affidavit of the other witness is filed and the said witness is subjected to cross-examination. Such being the way of proceeding with in the trial Courts due to pressure of work and for the purpose of accommodating the counsels, even if it is taken into consideration that the revision petitioner-D.W-2 was not present in the Courl hall when

l)t ( .\1...l ( 'U, \t.6t):tt ot :t)l'

D.W-l was cro: s-examined, it cannot be ruled out that the certified copy of deposit on of the said witness would have been taken and thereafter, the cf ief-affidavit of D.W-2 might have been filed and then the cross-examir ation would have been conducted. If such course was followed, natural [y respondent No. l /plaintif'f might not have taken any objection. It is not the version of respondent No. 1-plaintiff that he had produced all the chief-affidavits of his witnesses and subjected all of them to cross-exi mination at a time. It is not being done in most of the Courts of law. T rerefore, this Court is of the view that a pany to the suit cannot be de ried his legitimate right of putting forth his evidence before the Court of law. Therefore, this Court holds that the order under challenge ir liable to be set aside.

10. In the resul , the Civil Revision petition is allowed. l-he order of the Court of VI A Jditional Senior Civil Judge, Medchal, Ranga Reddy District in LA.llo.50 of 2017 in O.S.No.20g1 of 2006. dated 09.08.2017, is set aside. There shall be no order as to costs. I l.

Pending M ;cellaneous Petitions, ifany, shall stand closed. Sd/.T.KRISI-INA KUMAR ASSISTANLRI]CISTRAR ( ..1'r SECTION OFFICER II //rRUE COPY / / To, One Fair Copy to the l ton'ble Dr. Justice Chillakur Sumalatha ( For Her Lords dps Kind Perusal) To, 1 The Senior Civi Ranga Reddv t 2 11 L.R. Copies 3 The Under Secr Company Affai 4 The Secretary, r Hyderabad.

5 The Secretary, r Hyclerabacl.

6 One CC to Sri I 7 One CC to Sri ( 8 Two CD Copie:

9 One Spare Cop l.1R* Judge (FAC) VI Addl. Senior Civil Judge (FTC) Medchal, strict.

rtary, Union of India, Ministry of Law, Justice and 's, New Delhi.

.dvocates Associatiot"t (TG) Library, High Court tsuildings .dvocates Association (AP) Library, High Court Builclings ,.sudhakar Redc'ly And Neeraja Redtlv, Ar.lvocate [OPUC] addam Srinivas, Aclvocate IOPUC]

HIGH COURT DATED:3L/12/2021

ORDER

CRP.No.6920 of 2017 u1 Allowing the CRR w thout Costs.

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