Yerragunta Laxminarayana vs Regonda Markandeya
2022 Latest Caselaw 5354 Tel

     THE HON'BLE MRS JUSTICE SUREPALLI NANDA
                      C.R.P.NO.2225 OF 2022
ORDER:

Heard learned counsel for the petitioner and learned

Counsel for respondent.

2. This Civil Revision Petition is filed by the

petitioner/defendant under article 227 of the Constitution of

India challenging the propriety and legality of the order dated

01.07.2022 in I.A.No.01 of 2022 in O.S.No.154 of 2013 on

the file of the Principal Senior Civil Judge, Bhongir.

3. The parties are referred to as arrayed in the suit before

the lower Court.

4. The plaintiff filed the suit for recovery of the suit

amount of Rs.6,91,667/- from the defendant pleading inter

alia, that the defendant had borrowed Rs.1,50,000/- on

01.07.2011, Rs,3,00,000/- on 01.09,2012 and Rs.50,000/- on

10.09.2012 and executed three suit promissory notes, but did

not repay the pronote debts despite several demands and

inspite of the legal notice dated 10.09.2013 and so he was

constrained to file the suit.

                                                                CRP_1628_2022
                                  2                                     SN,J

5. The defendant filed written statement denying the

borrowal of the debts and alleging that the suit promotes are

forged and fabricated.

6. The trial in the suit commenced and the plaintiff

examined himself as PW.1 and PW.2 witnesses as PWs2 and 3

and after the closure of his evidence and when the suit was

posted for the evidence of the defendant, I.A.No.1 of 2022 is

filed by the defendant under Order 18 Rule 17 C.P.C. seeking

recall of PW.1 for further Cross-examination.

7. The plea of the defendant in the petition is that he

engaged one Ramesh as his counsel and since he fell sick he

engaged another counsel, but that counsel without taking any

instructions from him cross-examined PW.1, and that when

the suit was coming up for cross-examination of PW.2, he

came to know that his counsel had not cross-examined PW.1

properly by eliciting material facts and that he had not cross-

examined the witness as per the pleadings in respect of the

suit pronotes, which are forged and created by the plaintiff.

8. The respondent/plaintiff filed a counter opposing the

plea for recall of PW.1 for further cross-examination

contending that if PW.1 was not cross-examined with CRP_1628_2022 3 SN,J

reference to the pleadings the petition to recall PW.1 should

have been filed even before proceeding to cross-examine

PWs.2 and 3 and not at the stage when the case was posted

for the evidence of the defendant.

9. The trial Court after hearing both the counsel and

considering the material on record by the impugned order

dismissed the said petition.

PERUSED THE RECORD:

10. The learned counsel for the petitioner by relying upon

the decision of the erstwhile High Court of A.P. between

Rasool Bee v Fathima Bee, died and others1 contends

that the impugned order has to be set aside and PW.1 needs

to be recalled for further cross-examination.

11. Refuting that contentions, the learned counsel for the

respondent on the other hand, argued that there are no

grounds to recall PW.1 and that the petition is filed only to

drag on the matter.

12. Para 2 of the affidavit filed in I.A.No.1 of 2022 in

O.S.No.154 of 2013 reads as under:

2004 (2) ALD 362 CRP_1628_2022 4 SN,J

"That the respondents/plaintiffs filed a false suit against me respondent/defendant. As such I am contesting the suit by filing of my written statement. The above case is posted today for my evidence. Further it is submitted that previously I engaged one Maturi Ramesh Advocate and he fell sick and the another counsel without intimation of the progress of the case and without taking instructions and behind back of me the cross examination completed the PW.1 and subsequently I engaged another advocate Sri K.Ravinder Reddy and by that time PW.1 cross was completed and posted for PW.2 cross examination. Today it was brought to my notice the cross examination of PW.1 done by my previous counsel was not properly elicited to brought true facts through said witness since my previous counsel did not take any instructions from me while cross examination of PW.1. Further it is submitted that my previous counsel did not put questions as per my pleading with regard to the alleged documents which are forged and which are created by the respondent/plaintiff, thereby much injustice is causing for not properly put questions by concocting the documents and also earlier transactions with regard yarn business supplied to me. As such the said PW.1 to be recalled further cross examination for the reasons stated as above otherwise I will put irreparable loss and damage and it cannot be compensated in any other manner and the Hon'ble Court has got ample powers to recall the witness at any stage of the case in view of the above facts and circumstances to the case."

13. A bare perusal of the aforesaid para clearly indicates

that the defendant sought to recall PW.1 mainly on the

ground that his previous counsel had not properly cross

examined the witness by eliciting true facts from the witness

and that he had not questioned the witness in respect of the

alleged documents which are forged and created by the

plaintiff. It is to be noted that the defendant filed the petition

after the plaintiff had closed the evidence and when the suit CRP_1628_2022 5 SN,J

was coming up for adducing his evidence. If really the

previous counsel had not cross examined PW.1, the petition

ought to have been filed before the examination of PW.2 and

PW.3. The fact that the petition is filed subsequent to the

examination of PW.2 and PW.3 would indicate the absence of

bonafides in filing the petition. That the defendant filed the

petition when he was asked to adduce evidence, would

inferentially show that he wants to prolong the litigation.

Apart from this, the reason shown for recall of the witness is

that his previous counsel had not cross examined the witness

properly. Having engaged another advocate, the defendant

seeks to throw blame on the previous counsel alleging that he

had not cross examined the witness properly only to see that

the trial of the case is dragged further.

14. The Hon'ble Supreme Court in Vadiraj Nagappa

Vernekar (D) through LRs v. Sharad Chand Prabhakar

Gogate2 held that the provision under Order 18 Rule 17 is

not intended to be used to fill up omission in the evidence of

witness, who had already been examined. In para 16 it was

held as follows:

JT 2009 (7) SC 202 CRP_1628_2022 6 SN,J

"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 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.

15. The Kerala High Court in Vijayalakshmi v Joshy at

paras 6 and 7 held as follows:

"6.Further in the decision reported in Ram Rati v Manage Ram (D) through LR's (2016) 11 SCC 296 : AIR 2016 SC 1343) the apex Court has held that recalling of witness already examined for the purpose of filling up the lacuna in the evidence of the plaintiff cannot be allowed as a matter of course. In this case, the only ground mentioned is that he get the proof affidavit CRP_1628_2022 7 SN,J

only on the date on which the defendant was put in the box and he could not go through the same. But the Court below had thoroughly examined the proof affidavit which will go to show that, it only extracted what is stated in the written statement. The written statement was filed long ago.

7. Further the Court below also opined that, if he wanted time for cross-examination for not receiving the proof affidavit in time, he could have sought for adjournment at that time, which has not been done. On the other hand, he was cross examined at length by the counsel on the date on which the proof affidavit was filed. So under such circumstances, the Court below was perfectly justified incoming to the conclusion that the prayer in the petition cannot be granted as the person already examined cannot be recalled for the purpose of filling up the lacuna in the evidence of the plaintiff."

16. The High Court of Punjab and Haryana judgment

dated 03.07.2019 in Sanjay v Rajatdeep Singh Gulati

and others (CR No.4003 of 2019(O&M)) held as follows:

In the opinion of this Court, there is no justification to recall PW-1 who has already been cross-examined at length as putting of the photographs to said witness by way of recalling him will not effect the ultimate decision of the petition. The discretion provided in Order 18 Rule 17 CPC is too be exercised judicially and not arbitrarily. There is no justification for exercising discretion to recalling or re-examining of this witness who had already been cross-examined." "

17. In M/s Maple Logistics Private Limited v M/s Ribe

Textile Limited and others3, it was held that recalling of

witness for further elaboration on left out issues is

2017 (3) Law Herald 2201 CRP_1628_2022 8 SN,J

wholly impermissible in law and the purpose of Order

18 Rule 17 CPC is very limited and discretionary in

nature. The provisions to only be invoked by Court for

its convenience and not on asking of any party.

18. In the present case, as discussed supra, the defendant

seeks to recall PW.1 after the closure of the evidence of the

plaintiff by throwing the blame on the previous counsel

alleging that he had not cross examined the witnesses

properly by taking necessary instructions for cross

examination from him, only with a view to drag on the

matter. The decision of Rasool Bee's case 1st cited does not

come in aid of the case of the defendant. In that case, in a

partition suit, trial commenced and evidence of both the

parties was closed at that stage the defendant filed

application to reopen the evidence and to summon Mandal

Revenue Inspector and the trial Court allowed both the

applications and the Manga Revenue Inspector was examined

as DW.6 and Exs.B.8 to B.13 were marked through DW.6.

The plaintiff to verify the correctness and the genuinity of

Ex.B.8 to B.13 applied to the Mandal Revenue Officer to

furnish certified copies of Ex.B.8 to B.13, but the Mandal CRP_1628_2022 9 SN,J

Revenue Officer replied by way of letter that the record

pertaining to those documents was not traceable suspecting

the genuinity and authencity of documents plaintiff filed

petition to reopen her side of evidence and other petition to

summon Mandal Revenue Officer. By separate order, the trial

Court dismissed both the interlocutory applications.

Aggrieved thereby the plaintiff carried the matter by way of

revision. After considering the material on record, it was

found that the petitioner/plaintiff therein has found

reasonably good case for reopening the evidence and so the

lower Court ought to have permitted the petitioner to adduce

the evidence by examining the Mandal Revenue Officer

concerned and accordingly allowed both the civil revision

petitions.

19. The facts basing on which the two revision petitions

were allowed are entirely different from the facts of the

present case, as already mentioned above, the ground urged

by the petitioner that PW.1 needs to be recalled for further

cross examination as his previous counsel had not properly

cross examined the witness and the same was done without CRP_1628_2022 10 SN,J

his instructions is neither acceptable nor permissible under

law.

20. In view of the foregoing discussion, this Court is

of the considered view that the trial Court did not

commit any irregularity or illegality in passing the

impugned order and so this Court does not find any

reasons to interfere with the impugned order passed by

the Court below invoking the supervisory jurisdiction

under Article 227 of the Constitution of India. So the

petition lacks merits and the same is hereby dismissed

in limine.

21. Registry is directed to communicate this order to the

Court below at the earliest. There shall be no order as to

costs.

Miscellaneous petitions, if any, pending shall stand

dismissed.

_________________ SUREPALLI NANDA, J Date: 27.10.2022 Note: L.R. copy to be marked b/o Kvrm