Telangana High Court

Dr Tadavarthi Sri Anjaneya Gupta vs Yellanki Srinivas on 30 July, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

   IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                    C.R.P.No.2135 OF 2024

Between:

Dr. Tadavarthi Sri Anjaneya Gupta

                                        ... Petitioner/Defendant
And

Yellanki Srinivas
                                    ...     Respondent/Plaintiff


JUDGMENT PRONOUNCED ON: 30.07.2024


THE HON'BLE MRS JUSTICE SUREPALLI NANDA

1. Whether Reporters of Local newspapers      :   Yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be      :   Yes
   marked to Law Reporters/Journals?

3. Whether Their Lordships wish to            :   Yes
   see the fair copy of the Judgment?




                      _________________________________
                       MRS JUSTICE SUREPALLI NANDA
                              2                                        SN,J
                                                               CRP_2135_2024




         THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                      C.R.P.No.2135 OF 2024


% 30.07.2024

Between:

# Dr.Tadavarthi Sri Anjaneya Gupta
                                     ...   Petitioner/Defendant
      And

$ Yellanki Srinivas
                                       ... Respondent/Plaintiff

< Gist:

> Head Note:
! Counsel for the Petitioner      : Sri Alladi Ravinder,
                                    Ld.Senior Counsel,
                                    representing Sri M.
                                    Mallesham.

^ Counsel for Respondent          : Smt.Chinthalaphani Avani
                                    Reddy


? Cases Referred:

   (1)    (2011) 11 SCC, page 275
   (2)    (2013) 14 Supreme Court Cases 1
                                3                                          SN,J
                                                                   CRP_2135_2024




         HON'BLE MRS. JUSTICE SUREPALLI NANDA

                     C.R.P.No.2135 of 2024

ORDER:

Heard Sri Alladi Ravinder, learned Senior Counsel,

representing Sri M. Mallesham, learned counsel appearing

on behalf of the petitioner and Smt. Chinthalaphani Avani

Reddy, learned counsel appearing on behalf of the

respondent.

2. This Civil Revision petition is preferred aggrieved by the

order dated 24.06.2024 passed in I.A.No.214 of 2024 in

O.S.No.20 of 2021 on the file of the Principal District Judge,

Peddapalli.

3. PERUSED THE RECORD.

4. FACTS NOT IN DISPUTE :

The petitioner herein in the present CRP is the defendant in

the main suit O.S.No.20 of 2021 on the file of the Court of

Principal District Judge at Peddapalli.

The respondent herein had filed the main suit for recovery

of money based on promissory note dated 01.09.2013 and

original cheque bearing No.544000 on 30.12.2014. Thereafter, 4 SN,J CRP_2135_2024

on 30.03.2017 the petitioner/defendant filed elaborate written

statement and issues had been settled on 17.09.2017.

Thereafter, the respondent herein/plaintiff filed his evidence

affidavit on 06.02.2017 and the same is treated as PW1 evidence

and Ex.A1 to A4 are marked. Thereafter, PW1 was cross

examined on four occasions from 15.10.2019 to 02.03.2020. On

perusal of the cross examination of PW1 dated 02.03.2020 there

is reference to Ex.A4 and the petitioner herein to further cross-

examine PW1 with regard to Ex.A4, filed I.A.No.214 of 2024

stating that the respondent herein who is plaintiff in suit

O.S.No.20 of 2021 had adduced the evidence of himself and

another as PW1 and PW2.

The evidence of PW1 revealed about filing of Income Tax

returns and that the said important aspect had not been

confronted with PW1 about Ex.A4 and also not cross examined

him in respect of that aspect. To examine on this aspect, the

petitioner herein who is the defendant in the main suit prayed

that PW1 may be recalled for further cross-examination on the

ground that no prejudice would be caused to the

respondent/plaintiff, if PW1 is recalled.

5 SN,J CRP_2135_2024

The respondent in the present C.R.P., who is the plaintiff in

the suit O.S.No.20 of 2021 filed the said suit with a prayer as

under:

A) A decree for recovery of Rs.16,50,000/- made up of Rs.12,50,000/- principal amount and Rs.4,00,000/-

towards interest @ 24% per annum from 01.09.2013 to 30.12.2014 from the defendant.

B) A decree for future interest @ 24% per annum on the principal amount of Rs.12,50,000/- from the date of filing of the suit to till the date of realization of the entire loan amount.

C) Costs of the suit and D) Ant other relief.

5. The petitioner herein who is the defendant in suit

O.S.No.20 of 2021 on the file of Family Judge-cum-District

and Sessions Judge at Karimnagar filed written statement

on 30.03.2017 itself in the main suit O.S.No.20 of 2021

and in particular paragraph No.7 of the said written

statement is extracted hereunder:

"7. That the defendant submits that the allegations in Para 3 of the plaint in the suits in O.S. No. 220 of 2014 and 221 of 2014 alleged that the plaintiff in O.S. No. 220 of 2014 mobilized an amount of Rs. 12,50,000/- from his friends. There is no mention of the names of the friends from whom the amounts are mobilized. There are no particulars at all with regard to their capacity to give such

6 SN,J CRP_2135_2024

huge amounts to the plaintiff and also it is not stated whether any one of them are income tax assesses and whether they have showed the amounts in their Income Tax Returns. It is also not stated in the plaint whether the said amount was credited in his bank account and issued cheque for Rs. 12,50,000/- to this defendant. Further, neither of the plaintiff in O.S.No.220 of 2014 and 221 of 2014 showed the said amount in their respective Income Tax Returns."

6. The learned counsel for the petitioner mainly puts

forth the following submissions in support of petitioner's

case:

(i) The order of the Court below is illegal, contrary to law and facts, weight of evidence and probabilities of the case.

(ii) The Learned Judge erred in dismissing the application filed by the petitioner to recall Pw1 for further cross examination without giving any cogent reasons for such dismissal of the petition.

(iii) The Learned Judge ought to have seen that Order 18 Rule 17 grants the Hon'ble Court the power to recall any witness at any stage of the suit. This would have enabled the Defendant to have a further opportunity to present evidence that was omitted inadvertently by his counsel.

Specifically, it would have allowed for the elicitation of answers from PW1 regarding Exhibit A3, which includes the 7 SN,J CRP_2135_2024

Income Tax returns and a typed balance sheet. This balance sheet, marked by the Plaintiff, indicates that he lent money to the Defendant, yet this transaction is not reflected in the statutory IT Return form as per the IT Act & Rules.

(iv) The Learned Judge ought to have recalled PW1, as stated in the petition, to examine the Income Tax returns. The Plaintiff's previous counsel failed to address this point due to inadvertence, and thus, an opportunity should have been provided to cross-examine PW1. This would be essential to ensure complete justice for the Defendant.

(v) The Learned Judge failed to understand the scope and intent of Order 18 Rule 17 of Cr.P.C while dismissing the I.A No. 214 of 2024. Therefore, the learned trial court grossly erred while exercising the jurisdiction vested in it and as such the order under revision is liable to be set aside.

Based on the aforesaid submissions the learned counsel for the petitioner submitted that the CRP should be allowed as prayed for.

7. The learned counsel for the respondent on the other

hand mainly puts forth the following submissions:

(i) The subject suit O.S.No.20 of 2021 is posted for arguments.

8 SN,J CRP_2135_2024

(iii) The petitioner had elaborately cross-examined the

respondent/plaintiff on IT Returns and also examined DW3

to disprove the respondent/plaintiff's IT returns.

(iii) The I.A. No.214 of 2024 has been filed at a belated

stage only to delay the proceedings.

Based on the aforesaid submissions, learned counsel

appearing on behalf of the respondent sought for

dismissal of the present CRP.

8. The learned counsel appearing on behalf of the

petitioner placed reliance on the Judgment of the Apex

Court reported in (2011) 11 SCC, page 275 in

"K.K.VELUSAMY v. N.PALANISAMY", and in particular

placed reliance on para Nos.9, 12 (f) and 14, and contends

that the petitioner is entitled for the relief as prayed for in

the present C.R.P.

Paragraph Nos.9, 12 (f) and 14, read as under:

"9. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties.

9 SN,J CRP_2135_2024

The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate2]

12 (f) The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.

14. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose."

9. The learned counsel appearing on behalf of the

respondent on the other hand contends that the Power

under Order 18 Rule 17 is not intended to be used to fill

up omissions in evidence of a witness who has already

been examined and further placed reliance on paragraph

No.19 of the above same judgment relied upon by the 10 SN,J CRP_2135_2024

learned counsel appearing on behalf of the petitioner, and

the same is extracted hereunder:

"19. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs."

10. The Apex Court in the judgment reported in (2013)

14 Supreme Court Cases 1 in "Bagai Construction v. Gupta

Building Material Store", in particular paragraphs Nos.6,

10 and 14, read as under:

"6. The only point for consideration in this appeal is whether the plaintiff has made out a case for allowing the applications one filed under Order 18 Rule 17 read with Section 151 CPC and another application under Order 7 a Rule 14 read with Section 151 CPC? The trial court dismissed both the applications, however, the High Court by the impugned order' set aside the order of the trial court and directed taking on record the bills which are proposed to be filed by the plaintiff, granted permission to recall PW 1 to prove those bills. The High Court passed

11 SN,J CRP_2135_2024

such order in favour of the plaintiff subject to payment of costs of Rs 5000.

10. If we apply the principles enunciated in the above case and the limitation as explained with regard to the application under Order 18 Rule 17, the applications filed by the plaintiff have to be rejected. However, the learned counsel for the respondent by placing heavy reliance on a subsequent decision, namely, K.K. Velusamy v. N. Palanisamy, submitted that with the aid of Section 151 CPC, the plaintiff may be given an opportunity to put additional evidence and to recall PW 1 to prove those documents and if need arises other side may be compensated. According to him, since the High Court has adopted the said course, there is no need to interfere with the same.

14. The perusal of the materials placed by the plaintiff which are intended to be marked as bills have already been mentioned by the plaintiff in its statement of account but the original bills have not been placed on record by the plaintiff till the date of filing of such application. It is further seen that during the entire trial, those documents have remained in exclusive possession of the plaintiff but for the reasons known to it, still the plaintiff f has not placed these bills on record. In such circumstance, as rightly observed by the trial court at this belated stage and that too after the conclusion of the evidence and final arguments and after reserving the matter for pronouncement of the judgment, we are of the view that the plaintiff cannot be permitted to file such applications to fill the lacunae in its pleadings and evidence led by him. As rightly observed by the trial court, there is no g acceptable reason or cause which has been shown by the plaintiff as to why these documents were not placed on record by the plaintiff during the entire trial. Unfortunately, the High Court taking note of the words "at any stage" occurring in Order 18 Rule 17 casually set aside the order of the trial court, allowed those applications and permitted the plaintiff to place on record certain bills and also granted permission to recall PW 1 to prove those bills. Though power under Section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of court and court can exercise its discretion to permit reopening of evidence or 12 SN,J CRP_2135_2024

recalling of witness for further examination/cross- examination after evidence led by the parties, in the light of the information as shown in the order of the trial court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of Section 151 CPC, the plaintiff cannot be permitted."

11. The Apex Court in the above referred judgment

reported in 2013 (14) SCC 1 in Bagai Construction Vs.

Gupta Building Material Store clearly observed that when

documents were very well available throughout the trial

even by exercise of Section 151 CPC, the applications filed

under order 18 Rule 17 read with Section 151 CPC cannot

be allowed. In the said case, the trial Court had dismissed

the application filed under order 18 Rule 17 with Section

151 CPC. The High Court had allowed the said application

imposing costs of Rs.5,000/-, but the Apex Court vide its

order dated 22.02.2013 set aside the order of High Court

and restored the order of trial Court dated 25.02.2010.

12. The relevant portion at para Nos.8 and 9 of the order

impugned dated 24.06.2024 in I.A.No.214 of 2024 in

O.S.No.20 of 2021, is extracted hereunder:

"8. When this court specifically gone through the main suit proceedings, the main suit is filed for recovery of

13 SN,J CRP_2135_2024

money based on promissory note dated. 01.09.2013 and original check bearing No. 544000 on 30.12.2014. Thereafter, on 30.03.2017 defendant filed elaborated written statement. Issues settled on 17.09.2017. Thereafter, plaintiff filed his evidence affidavit on 06.02.2017 and the same is treated as PW1 evidence and Ex.A1 to A4 are marked. Thereafter, PW1 was cross examined on four (04) occasions from 15.10.2019 to 02.03.2020. On perusal of the cross examination of PW1 dated 02.03.2020 it refers with regards to Ex.A4.

9. So, the contention of the learned petitioner counsel that he has to further cross examined PW1 with regard to Ex.A4 that too after hearing arguments of the plaintiff on 11.06.2024 is not appearing to the convincing and reasonable. Furthermore, the reasons for such cross examination of PW1 are also not at all appearing to be convincing. So, the contentions of the petitioner to recall PW1 after completion of the evidence of defendants by examining DW1 to DW3 which was concluded on 03.04.2024 and keeping silent on the pleas till filling of the present petition on 18.06.2024 clearly appearing to the court that the endeavor of the petitioner is only to dodge the proceedings in the main suit. So, that the reasons urged by the petitioner are not having any tenable and convincing reason furthermore the reasons avered in the affidavit petition are not at all appearing to be sufficient and reasonable. Thereby, this court is of considered view that the petition is lack of bonafides to enlighten the court on the points as urged by him. So, that the petition is 14 SN,J CRP_2135_2024

devoid of merits and deserves to be dismissed with costs. Accordingly, the point is answered."

13. A bare perusal of the record indicates that the suit

O.S.No.20 of 2021 had been filed by the respondent

herein in the present CRP/plaintiff for recovery of money

based on promissory note dated 01.09.2013 and original

cheque bearing No.544000 on 30.12.2014 and the written

statement had been filed on 30.03.2017 itself by the

petitioner/defendant and issues had been framed on

17.09.2017 and the respondent/plaintiff filed his evidence

affidavit on 06.02.2017 and the same is treated as PW1

evidence and Ex.A1 to A4 are marked and PW1 was cross

examined on four occasions from 15.10.2019 to

02.03.2020. A bare perusal of the record pertaining to

cross-examination of PW1 dated 02.03.2020 also refers

with regard to Ex.A4. This Court takes note of the fact

that the suit is filed in the year 2014 initially i.e., on

30.12.2014 and is renumbered as O.S.No.20 of 2021 and

the present application I.A.No.214 of 2024 in O.S.No.20 of

2021 is filed in June 2024 with a prayer to recall PW1 for

further cross-examination on the ground that no prejudice

would be done to the respondent herein, if PW1 is 15 SN,J CRP_2135_2024

recalled. This Court opines that this Court can permit to

recall PW1 for further cross examination at the stage of

arguments provided the said information/documents had

not been available throughout the trial and not otherwise.

A bare perusal of the written statement filed by the

petitioner herein/defendant in the year 2017 and in

particular para No. 7 of the said written statement

(referred to and extracted above), clearly indicates the

specific averments made by the petitioner

herein/defendant in suit O.S.No.20 of 2021 pertaining to

Income Tax returns. However, for reasons best known to

the petitioner/defendant no application had been filed till

the year 2024.

14. Taking into consideration:

a) Para No.19 of the judgment of the Apex Court reported

in 2011 (11) SCC page 275 in K.K.Velusamy Vs.

N.Palanisamy, and

b) The judgment of the Apex Court reported in 2013 (14)

SCC 1 Bagai Construction Vs. Gupta Building Material

Store, in particular paragraph Nos.6, 10 and 14.

16 SN,J CRP_2135_2024

A bare perusal of the order impugned dated

24.06.2024 in I.A.No. 214 of 2024 in O.S.No.20 of 2021 on

the file of the Principal District Judge at Peddapalli

indicates that the petitioner failed to project any

acceptable reason or cause that warrants interference

with respect to the order dated 24.06.2024 passed in

I.A.No.214 of 2024 in O.S.No.20 of 2021 by the learned

Principal District Judge, Peddapalli. This Court opines that

the petition/application filed by the petitioner under

Order 18 Rule 17 of CPC praying the Court to recall PW-1

for further cross-examination in the interest of justice is