Smt. K.Shailaja vs K.Laxminarayana Gupta And ...
2022 Latest Caselaw 6435 Tel

THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY
        CIVIL REVISION PETITION NO.2271 OF 2022
ORDER:

This Civil Revision Petition is filed by the

petitioner assailing the order dated 26.09.2022 in

I.A.No.617 of 2022 in O.P.No.2 of 2015 filed under Order

XVIII, Rule 17 of Civil Procedure Code (for short 'CPC') with

a prayer to recall RW1 for the purpose of further cross-

examination. The learned Judge, I Additional Family Court,

Hyderabad has dismissed the said application in

I.A.No.617 of 2022 along with I.A.No.618 of 2022 filed

under Section 151 of CPC to re-open the evidence of RW1

for the purpose of further cross-examination. Feeling

aggrieved by the said common order this civil revision

petition is filed only in I.A.No.617 of 2022. The revision

petitioner has not assailed the orders in I.A.No.618 of

2022.

2. Notice is served on the respondent, who remained

absent without any representation.

AVR,J CRP_2271_2022

3. Heard learned counsel for the petitioner. The

submissions made on behalf of the revision petitioner have

received due consideration of this Court.

4. This application is filed to recall RW1 for further

cross-examination. As per the averments in the supporting

affidavit, the witness RW1 and another witness RW2 were

cross-examined and the evidence on both sides is closed,

her counsel conducted cross-examination, requested the

Advocate Commissioner to bring the copies of exhibits from

the Court, chief evidence affidavit was filed into nine pages

and more than thirty pages documents were appended to

it. The learned Advocate Commissioner has failed to take

note of all these aspects.

5. Be it stated that there is no record to that effect

that aggrieved by the conduct of the Advocate

Commissioner, any Memo was filed before the trial Court.

In-fact, as per the order impugned the report filed by the

Advocate Commissioner was accepted without there being

any objections made by either side. Accordingly, the

learned Judge of the trial Court has held that unethical AVR,J CRP_2271_2022

litigants shall not be permitted to pollute the proceedings

and the petitioner cannot seek the relief of recall of RW1.

6. The present application along with another

application in I.A.618 of 2022 was filed after closure of

evidence of both sides and at the stage of arguments.

Accordingly, the learned Judge of the trial court has held

that no such Memo was filed nor any representation was

made as to the conduct of the Advocate Commissioner in

not allowing her counsel to cross-examine the witness and

abruptly closing the cross-examination without giving any

opportunity, accordingly, dismissed the said application.

7. In this context, I may refer to the judgment of

the Apex Court in M/s.Bagai Constructions through its

Proprietor Lalit Bagai Vs.M/s.Gupta Building Material

Stores1 wherein the Apex court while dealing with an

application under Order XVIII, Rule 17 of CPC for recall of

witnesses held that recording of evidence is a continuous

process followed by arguments and decision of the Court.

Adjournments, reopening and recalling of witnesses are

AIR 2013 SC 1849 AVR,J CRP_2271_2022

only to be allowed in compelling circumstances sparingly

and such applications should not be allowed merely on the

ground that recall and re-examination would not cause

prejudice to the other side and it is not the scheme or

intention of Order XVIII, Rule 17 of CPC.

8. Therefore, when the facts of the case are tested

on the touchstone of the principles laid in the above

decision, the answer is in negative and in my considered

opinion the revision petitioner is not entitled for recall of

RW1 at the stage of arguments and any such exercise

would amount to allowing the revision petitioner to fill up

lacuna which is impermissible under law. That apart the

order in I.A.No.618 of 2022 is also not assailed by the

petitioner, which was filed for reopening the evidence of

respondents. Therefore, for all the reasons stated above, I

do not find any merit in the request made by the petitioner,

no jurisdictional error or infirmity is committed by the trial

Court in dismissing the orders impugned and it does not

warrant any interference by this Court.

AVR,J CRP_2271_2022

9. In the result, this civil revision petition is

dismissed confirming the impugned order dated

26.09.2022 in I.A.No.617 of 2022 in O.P.No.2 of 2015 on

the file of the learned Judge, I Additional Family Court,

City Civil Courts, Hyderabad.

However, in the circumstances of the case, there

shall be no order as to the costs. As a sequel,

miscellaneous applications, if any pending, shall stands

closed.

________________________________ A.VENKATESWHARA REDDY, J Dated : 05-12-2022 Abb