Smt. Uppala Veera Raghavamma ... vs Reddy Veera Venkata ...
2023 Latest Caselaw 4143 AP

Citation : 2023 Latest Caselaw 4143 AP
Judgement Date : 11 September, 2023

Andhra Pradesh High Court - Amravati

Smt. Uppala Veera Raghavamma ... vs Reddy Veera Venkata ... on 11 September, 2023

Bench: Cheekati Manavendranath Roy

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

      CIVIL REVISION PETITION NO. 1925 OF 2023

 ORDER:-

 1)   This Civil Revision Petition is directed against the

 Order, dated 27.03.2023, passed in I.A. No. 172 of 2023 in

 O.S. No. 82 of 2020 on the file of the III Additional Junior

 Civil Judge, Kakinada, whereby the petition filed under

 Order XVIII Rule 17 of the Code of Civil Procedure, 1908

 ['C.P.C.'], to recall DW1 for further cross-examination was

 allowed.


 2)    Heard learned Counsel for the Petitioners. Despite

 service of notice, none appeared for the Respondent.

3) The Petitioners are the Defendant Nos. 1 and 2 in

O.S. No. 82 of 2020 on the file of the III Additional Junior

Civil Judge, Kakinada. The said Suit was filed by the

Respondent herein, who is the Plaintiff in the said Suit, for

recovery of money on the foot of a promissory note, dated

15.04.2018. After closure of the evidence of the Plaintiff,

the Suit was posted for evidence of Defendants. The

Husband of 2nd Defendant was examined as DW1 and he

was cross-examined by the Plaintiff. The petition was filed

on the same day to send the Suit promissory note for

examination to hand writing expert with the

contemporaneous signatures on the other documents. The

said petition was allowed and the expert opinion was

received. Thereafter, the Plaintiff has filed a petition under

Order XVIII Rule 17 of C.P.C., to recall DW1 for further

cross-examination stating that due to non availability of

the Plaintiff, certain questions could not be put to DW1.

The said petition came to be allowed by the impugned

order recalling DW1 for further cross-examination.

4) Aggrieved thereby the present Civil Revision Petition

is filed by the Petitioners/Defendants assailing the legal

validity of the same.

5) Learned Counsel for the Petitioners would submit

that the Plaintiff did not state as to what are the material

aspects on which DW1 is to be further cross-examined and

his petition is too vague and the trial Court without

considering the same, as to what are the material aspects

on which DW1 is required to be further cross-examined

has erroneously allowed the petition by recalling DW1 for

the purpose of cross-examination.

6) This Court finds considerable force in the contention

of the learned Counsel for the Petitioners. As can be seen

from the petition filed under Order XVIII Rule 17 of C.P.C.,

in the trial Court, except stating that DW1 is to be further

cross-examined on some material aspects, it is not clarified

or stated as to what are the said material aspects on which

DW1 is to be cross-examined. So, it is undoubtedly a vague

plea taken in the petition by the Plaintiff. When DW1 was

already cross-examined by the Plaintiff and when the

Plaintiff intends to further cross-examine DW1, he has to

explain what are the material aspects on which the further

cross-examination is required. The same is conspicuously

absent in the petition. So, DW1 cannot be recalled for

further cross-examination on such vague plea.

7) Further, it is stated in the petition filed under Order

XVIII Rule 17 of C.P.C. as the Petitioners could not give

sufficient instructions to their Counsel that the said

material aspects are not touched in the cross-examination

of DW1. The said ground is not a valid ground to allow the

petition to recall a witness for further cross-examination.

8) The erstwhile High Court of Andhra Pradesh in the

case of Nagumothu Sriharinath Vs. Nagumothu Vani1

held that, recalling a witness for the purpose of further

cross-examination on the ground that the counsel at the

time of cross-examination was not properly briefed, cannot

be permitted. The said judgment squarely applies to the

present facts of the case. The trial Court erred in

distinguishing the said judgment on irrelevant grounds.

Even the Apex Court in the case of Vadiraj Naggappa

Vernekar (D) Th.... Vs. Sharad Chand Prabhakar

Gogate2 held at paragraph No. 16 as follows:

"16. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been

[1997] 5 ALD 237

Civil Appeal No. 1172 of 2009, dated 24.02.2009

examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re- examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC."

9) As noticed supra, except stating in a vague manner

in the petition that DW1 is to be further cross-examined on

some material aspects, what are those material aspects is

not clarified. Therefore, the trial Court erred in allowing the

petition for recall of DW1 for further cross-examination.

The petition appears to have been filed to further delay the

process of law and elongate the trial of the case which

reached the fag end of the trial of the Suit.

10) Therefore, the Civil Revision Petition is allowed

setting aside the impugned order, dated 27.03.2023,

passed in I.A. No. 172 of 2023 in O.S. No. 82 of 2020 on

the file of the III Additional Junior Civil Judge, Kakinada.