Telangana High Court

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

Author: Surepalli Nanda

Bench: Surepalli Nanda

         HON'BLE MRS. JUSTICE SUREPALLI NANDA

                     C.R.P.No.2138 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.215 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, 2 SN,J CRP_2138_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. The petitioner herein filed

I.A.No.215 of 2024 stating that the respondent herein who is

plaintiff in suit O.S.No.20 of 2021 and 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.

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

the suit O.S.No.20 of 2021 which is filed with a prayer as under:

3 SN,J CRP_2138_2024

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 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 4 SN,J CRP_2138_2024

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 and reopen the suit without giving any reason 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 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 5 SN,J CRP_2138_2024

reflected in the statutory IT Return form as per the IT Act & Rules.

(iv) The Learned Judge ought to have reopen the case for further cross examination of PW1 by the defendant and enable him to give an opportunity to lead evidence of Income tax returns which is relied upon by the plaintiff.

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.

(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.215 of 2024 has been filed at a belated

state 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.

6 SN,J CRP_2138_2024

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. 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 7 SN,J CRP_2138_2024

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

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 8 SN,J CRP_2138_2024

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 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 9 SN,J CRP_2138_2024

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 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 10 SN,J CRP_2138_2024

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.7 and 8 of the order

impugned dated 24.06.2024 in I.A.No.215 of 2024 in

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

"7. It is very much evident that the present petition herein already filed I.A.No.214 of 2024 by giving a reasoned order this Court dismiss that petition with costs. When I.A.No.214 of 2024 is dismissed with costs, then the present petition becomes infructuous and it also deserves to be dismissed as bonafides in filing the present petition are not properly and satisfactorily explained. Furthermore, this Court herein assigned sufficient reasons while dismissing I.A.No.214 of 2024.

8. Therefore, the present petition is devoid by merits and deserves to be dismissed with costs. Accordingly, the point is answered."

11 SN,J CRP_2138_2024

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 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.215 of 2024 in

O.S.No.20 of 2021 is filed in June 2024 with a prayer to

reopen the case for the purpose of examination of PW1 on

the ground that no prejudice would be done to the

respondent herein, if PW1 is recalled. This Court opines

that this Court can permit to re-open the case for further

cross examination of PW1 at the stage of arguments 12 SN,J CRP_2138_2024

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 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

respondent/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.

A bare perusal of the order impugned dated

24.06.2024 in I.A.No. 215 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 13 SN,J CRP_2138_2024

with respect to the order dated 24.06.2024 passed in

I.A.No.215 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

Section 151 of CPC praying the Court to re-open the case

for the purpose of examination of PW-1 in the interest of

justice is not bonafide, bereft of reasons and without any