Pongupati Ram Mohan vs Marupilla Vandana,
2023 Latest Caselaw 2 AP

           HON'BLE SRI JUSTICE SUBBA REDDY SATTI

        CIVIL REVISION PETITION Nos.1242 and 1238 of 2022

   Pongupati Ram Mohan, S/o Venkateswarlu, Hindu, aged 61
   years, Retired employee, R/o D.No.64-7-9A, Raghava Nagar,
   Patamatalanka, Vijayawada -10, N.T.R. District.

                                                 ... Petitioner in 2 CRPs

                                   Versus

   Marupilla Vandana, W/o Srinivasa Rao, Hindu, aged 40 years,
   Housewife, R/o D.No.9-9-14, Marupilla Vari Lane, Brahman
   Street, Vijayawada - 01, N.T.R. District.
                                            ... Respondent in 2 CRPs

Counsel for the petitioner : Sri G. Ramachandra Reddy Counsel for respondent : ---

COMMON ORDER:

Plaintiff in the suit filed the above civil revision petitions

under Article 227 of the Constitution of India.

2. CRP Nos.1242 and 1238 of 2022 are filed against

common order, dated 18.06.2022 in I.A.Nos.266 and 265 of

2022 respectively on the file of learned VIII Additional District

Judge Vijayawada.

3. Plaintiff filed O.S.No.212 of 2013 seeking specific

performance of agreement of sale, dated 17.03.2012 against the

defendant.

Page 2 of 8 SRS, J CRP Nos.1242 and 1238 of 2022

4. When the suit is coming up for evidence of defendant,

defendant filed above applications to reopen the evidence of

plaintiff and to recall evidence of PWs1 to 3, respectively.

5. In the affidavit filed in support of the petitions, it was

contended inter alia that recently counsel was changed and new

counsel after going through the record and evidence of PWs1

to 3 and Exs.A1, A6 and A7 opined that counsel omitted to put

some crucial questions and hence advised the petitioner to file

above applications and hence, filed the present applications for

the reliefs as stated supra.

6. Petitioner/plaintiff filed counter and opposed the

application. In the counter, it was contended inter alia that

initially defendant was set ex parte. Plaintiff filed affidavit in lieu

of chief examination and cross-examination of plaintiff was

closed on 15.11.2018. Defendant filed two applications on

22.11.2018 to set aside ex parte decree and to recall PW1.

Those two IAs were allowed on condition to cross-examine PW1.

Even after imposing said condition, defendant protracted the

matter for several adjournments. PW3 filed affidavit in lieu of

chief examination and since there was no cross-examination,

the Court below closed the cross examination on 06.03.2020,

treating as NIL. Defendant filed I.A.Nos.571 and 572 of 2020 to Page 3 of 8 SRS, J CRP Nos.1242 and 1238 of 2022

reopen and recall and to cross-examine witnesses; that those

applications were allowed and eventually plaintiff side evidence

was closed on 04.11.2020. Suit was adjourned for the evidence

of defendant and suit was adjourned to 25.11.2021,

07.01.2022, 16.03.2022 on costs of Rs.100/-, Rs.300/- and

Rs.500/- respectively. Defendant having failed to adduce

evidence filed the present applications to protract the

proceedings and eventually prayed to dismiss the applications.

7. Trial Court by common order, dated 18.06.2022 allowed

both applications on condition of defendant paying Rs.1,000/-

to each witness, on the date of adjournment and to cross-

examine the witness on the date of adjournment. Aggrieved by

the same, the above revisions are filed.

8. Heard learned counsel for the petitioner/plaintiff. This

Court ordered notice to the respondent/defendant on

08.07.2022. Notice sent to the respondent to the address shown

in the plaint returned with endorsement 'no such addressee'.

Proof of service is filed vide USR No.47534 of 2022. However,

notice was served on the learned counsel appearing for the

respondent before the Court below. Therefore, this court is of

the opinion that service of notice is affected on the Page 4 of 8 SRS, J CRP Nos.1242 and 1238 of 2022

respondent/defendant. However, there is no representation on

behalf of the respondent.

9. Learned counsel for the petitioner/plaintiff would contend

that the change of Advocate as pleaded by the defendant is not

a ground to recall witness. He placed reliance on Velugu

Eswaramma and another v. Velugu Shoba Rani1 and submits

the defendant has not assigned cogent reasons and witness

cannot be recalled filling up lacunae. He would further submit

that PWs1 to 3 did not receive the costs imposed by the trial

Court. Therefore, he prays to set aside the order of the trial

Court.

10. The point to be considered is whether the trial Court

exceeded its jurisdiction in allowing the applications?

11. Suit in O.S.No.212 of 2013 is filed seeking specific

performance of agreement of sale. As can be seen from the

counter affidavit, initially defendant was set ex parte. Thereafter

he filed two applications, one to set aside ex parte decree and

another to recall PW1 and they were allowed. Subsequently

defendant filed two other applications i.e. I.A.Nos.571 and 572

of 2020 to recall PW1 to reopen evidence of PW3 and recall PW3

only and they were also allowed. Thus, on two occasions,

2019 3 ALD 653 Page 5 of 8 SRS, J CRP Nos.1242 and 1238 of 2022

defendant was given opportunity cross-examine plaintiff and his

witnesses.

12. After completion of plaintiff's evidence, suit was adjourned

to 04.11.2020, 25.11.2021, 07.01.2022 and 16.03.2022 on

costs. But, defendant did not adduce any evidence and filed the

present applications on 24.09.2022 to reopen evidence on

plaintiff side and recall witnesses. Trial Court, in the order

under revision, recorded a finding which reads thus:

"As seen from the material on record, no doubt as contended by the counsel for respondent, the petitioner has taken abundant time and number of adjournments to cross-examine the each and every witness. ....... As seen from the counter there is no serious dispute from the respondent side except contending that the petitioner is habituated of taking adjournments and the petitioner has cross-examined PWs1 to 3 at length and these petitions are filed with an intention to protract the proceedings. ..."

13. Having observed that defendant has been given sufficient

opportunity and inspite of the counter filed by the plaintiff,

Court below allowed the applications by imposing costs.

Reopening of evidence and recalling of witness are not routine

exercises. Courts have to exercise this discretion judiciously and

such applications cannot be allowed in the absence of cogent

reasons.

Page 6 of 8 SRS, J CRP Nos.1242 and 1238 of 2022

14. In, Velugu Eswaramma and another v. Velugu Shoba

Rani referred to supra, this Court at para No.16, held as under:

"16. Therefore, in conclusion, this Court in these two civil revision petitions holds that the affidavit filed to recall the witness does not meet the standards laid downy by the Hon'ble Supreme Court of India in the judgments. The failure to cross- examine the witness on certain aspects by itself is not a ground enough to recall the witness for the purpose of further cross-examination. If this is allowed, the gaps will be filled up. The entire branch of developed case law of the highest Courts in the country, including the Hon'ble Supreme Court of India, on the failure to cross-examine a witness etc., will be set at naught, if every witness is recalled on such tenuous grounds. The grounds to reopen the matter are also similar in this case. They are not enough to reopen the case. For all these reasons, this Court holds that both the civil revision petitions do not have any merits whatsoever."

15. In the present case, the ground on which witness sought

to be recalled is change of advocate. In the considered opinion of

this court, change of Advocate is no ground to recall the

witness. Reopen and recall applications cannot be allowed on

such tenuous ground. In the opinion of this Court, the trial

Court exceeded its jurisdiction in allowing the applications.

Therefore, the common order passed by the trial Court is liable

to be set aside.

Page 7 of 8 SRS, J CRP Nos.1242 and 1238 of 2022

16. In view of the above discussion, these civil revision

petitions are allowed setting aside the common order, dated

18.06.2022 in I.A.Nos.266 and 265 of 2022 in O.S.No.212 of

2013 on the file of learned VIII Additional District Judge

Vijayawada. I.A.Nos 266 of 2022 and 265 of 2022 stand

dismissed.

17. Since the suit is of the year 2013, the trial Court shall

dispose of the suit as expeditiously as possible, keeping in

view the circular issued by High Court of Andhra Pradesh

vide R.O.C.No. 560/OP/CELL/2022 dated 23.11.2022 strictly

in accordance with law.

As a sequel, all the pending miscellaneous applications shall stand closed.

                                     __________________________
                                      SUBBA REDDY SATTI, J

Date : 02.01.2023
ikn
 Page 8 of 8                     SRS, J
                                CRP Nos.1242 and 1238 of 2022




        HON'BLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL REVISION PETITION Nos.1242 and 1238 of 2022

Date: 02.01.2023

ikn