Sri Daggubati Venkatesh vs W3 Hospitality Services Private ...
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Telangana High Court

Sri Daggubati Venkatesh vs W3 Hospitality Services Private ... on 9 June, 2025

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
      CIVIL REVISION PETITION Nos.2815 and 2858 of 2024

COMMON ORDER:

Civil Revision Petition No.2858 of 2024 is filed challenging the

order, dated 22.03.2024, passed in I.A.No.392 of 2024 in O.S.No.283

of 2020 by the IV Senior Civil Judge, City Civil Court at Hyderabad.

2. Civil Revision Petition No.2815 of 2024 is filed challenging the

order dated 22.03.2024 passed in I.A.No.393 of 2024 in O.S.No.283 of

2020 by the IV Senior Civil Judge, City Civil Court at Hyderabad.

3. Since the issue involved in both the Civil Revision Petitions is

interconnected and the result is interdependent, both the Revision

Petitions are heard together and are being disposed of by common

order.

4. The petitioner herein is the plaintiff and the respondent herein is

the defendant in the suit. For convenience, hereinafter, the parties are

referred to as they are arrayed in the suit.

5. Heard Sri T Raghu Ram, learned counsel for the petitioner and

Sri G.Vidya Sagar, learned senior counsel appearing for

Sri P.Shashidhar Reddy, learned counsel on record for the respondent.

LNA, J CRP.Nos.2815 & 2858 of 2024

6. The brief facts of the case, required for disposal of the present

Revision Petitions, are that plaintiff filed the suit-OS.No.283 of 2023

against the defendant for eviction, recovery of arrears of rent,

injunction, mesne profits and damages in respect of the suit schedule

property; that while the said suit was pending adjudication, defendant

filed applications, vide IA.No.392 and 393 of 2023, to reopen the

plaintiff's side evidence and to recall PW1 for cross examination.

7. In the affidavits, filed in support of the said applications, the

defendant averred that the after completion of cross-examination of

PW1, the GHMC officials issued a notice to the defendant and the

same was challenged by the defendant before the High Court vide

W.P.Nos.41135 and 40729 of 2022; that prior to filing of the said

Writ Petitions, the plaintiff filed W.P.No.18529 of 2021 before the

High Court; and that all the three Writ Petitions were disposed of on

11.11.2022; that after disposal of the said Writ Petitions, the plaintiff,

hand in glove with the GHMC officials, demolished the suit schedule

property, in the absence of the defendant, despite the orders of the

High Court not to demolish the structures and thereby, changed the

nature of the suit schedule property.

LNA, J CRP.Nos.2815 & 2858 of 2024

8. It was further averred that PW1 has to be confronted with the

afore facts which are subsequent developments after completion of

cross-examination of PW1; that cross-examination of PW1 was done

at his residence and that due to non-availability of the Court records,

certain important questions were not posed to the P.W-1 by then

counsel for defendant. Hence, it is just and essential to reopen the

plaintiff's side evidence and to recall Pw1 for further cross-

examination of P.W-1 for fair and just adjudication of the suit.

9. A counter was filed by the plaintiff denying the averments

made in the application and it is inter alia contended that Order XVIII

Rule 17 of CPC can be invoked to enable the Court to get clarification

of any issue/doubt with regard to the evidence led by the parties to the

suit by recalling any witness so that the Court itself can put questions

and elicit answers. It was further averred that affidavit in lieu of chief

examination of P.W-1 was filed on 03.08.2021 and the plaintiff's side

evidence was closed by 26.08.2021 and the case was posted to

03.09.2021 for defendants' side evidence, however, for more than two

years the defendant has delayed to bring his evidence on record till

08.11.2023 and in the interregnum, the defendant's side evidence was

eschewed on 10.11.2021; that on 22.11.2021, time was extended to

LNA, J CRP.Nos.2815 & 2858 of 2024

submit arguments; that on 26.11.2021, IA was filed to set aside order

dated 10.11.2021 and the same was allowed on 17.12.2021; that later,

time was extended for cross-examination. Finally, after several

adjournments DW1 was cross examined on 03.10.2023 and the case

was posted for further evidence to 13.10.2023. On 13.10.2023, at

request of defendant, the case was adjourned to 19.10.2023 and

further, to 08.11.2023 on costs of Rs.200/-, but, after three

adjournments, the defendant reported no further evidence. The

petitioner has filed the present applications only to protract the case

proceedings and the same is contrary to the orders dated 02.11.2021

passed by the High Court in CRP.No.1355 of 2021, whereby the trial

Court was requested to hear and dispose of the suit expeditiously, not

later than three months from the date of receipt of copy of that order.

10. It was further averred that the trial Court vide impugned orders

dated 22.03.2024 allowed the two applications by observing that the

procedure adopted by the GHMC officials while demolishing the

alleged illegal constructions and other related facts, which came into

existence subsequent to the recording of the depositions, have a

bearing on the decision and also will assist the Court in rendering

justice and thus, gave an opportunity to the defendant permitting him

LNA, J CRP.Nos.2815 & 2858 of 2024

to recall P.W-1 for further cross-examination by reopening the

plaintiff's side evidence. Aggrieved by the said orders, the present

Revision Petitions are filed by the plaintiffs.

11. Learned counsel for the petitioner/plaintiff submitted that the

trial Court failed to exercise its inherent powers vested with it under

Section 151 CPC, which could be exercised to reopen evidence for

further cross-examination only for the purpose other than securing

clarification and thus, erroneously passed the impugned orders. He

further submitted that the trial Court, in the light of the fact that the

leased property is demolished by GHMC, ought to have held that the

suit itself has become infructuous, however, it erred in passing the

impugned orders, which are contrary to law and not sustainable and

therefore, he prayed to allow the Revision Petitions.

12. In support of his contentions, learned counsel for the

petitioner relied upon the judgment of the Hon'ble Apex Court in

K.K. Velusamy Vs. N.Palanisamy1. In the said case, the Hon'ble

Apex Court held that power under Order XVIII Rule 17 CPC is only

for clarification i.e., to enable the Court to clarify any issue or doubt it

may have in regard to evidence led by parties by recalling any witness

(2011) 11 SCC 275

LNA, J CRP.Nos.2815 & 2858 of 2024

so that Court itself can put questions to such witness and elicit

answers, however, this power is not intended to be used to fill up

omissions in evidence of a witness who has already been examined.

13. On the other hand, learned senior counsel for respondent

submitted that the trial Court, taking into account the overall facts and

circumstances of the case, particularly, the fact that the issues in

respect of illegal constructions, demolition of structures in the suit

schedule property by the GHMC, etc., observed that since the said

issues have a bearing on the result of the suit and hence, the trial Court

has rightly permitted the defendant to recall P.W-1 for further cross-

examination. Learned senior counsel further contended that the

plaintiff is also seeking mesne profits and therefore, it is imperative

that the subsequent developments have to be confronted to P.W-1 and

hence, the impugned orders passed by the trial Court are based on

sound and proper reasons, which does not warrant any interference by

this Court and accordingly, the Revision Petitions are liable to be

dismissed.

14. It is the specific case of the defendant that certain subsequent

developments have taken place after cross-examination of P.W-1, i.e.,

LNA, J CRP.Nos.2815 & 2858 of 2024

the plaintiff, in collusion with GHMC officials, has demolished the suit

schedule property, thereby changing the nature of the suit schedule

property, and as such, it is essential that the said facts be confronted to

P.W-1 during his cross-examination.

15. In this regard, it is appropriate to refer to Sections 101 and 103

of the Indian Evidence Act, 1872, the essence and core meaning of all

these Sections is that when a person wishes the Court to believe the

existence of any fact(s) and desires that the Court gives judgment

dependant on existence of the said facts, the burden of proof as to

existence of that particular fact lies on that person.

16. As per Section 106 CPC, when any fact is especially in the

knowledge of any person, the burden of proving that fact is upon him.

17. Adverting the aforesaid sections to the case on hand, it is to be

seen that in the present case, as the defendant is contending that the

plaintiff, in collusion with the GHMC officials, has demolished the suit

schedule property, thereby changing the nature of the suit schedule

property, the burden of proof lies on him as to the existence of the said

fact(s) by adducing evidence on his behalf. Here, 'adducing evidence

on his behalf' would necessarily mean to examine any witness(es) on

LNA, J CRP.Nos.2815 & 2858 of 2024

his behalf to prove the existence of any fact, and not by cross-

examination of witness(es) of the rival party.

18. In other words, the burden is on the defendant to prove the

existence of the facts contended by him before the Court, which can be

done only by leading evidence on his behalf and placing relevant

material on record in support thereof, however, the said fact cannot be

proved by way of cross-examination of P.W-1.

19. In Vadiraj Naggappa Vernekar (deceased by LRs) v. Sharad

Chand Prabhakar Gogate2, the Hon'ble Supreme Court held as under:

" 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

AIR 2009 SC 1604.

LNA, J CRP.Nos.2815 & 2858 of 2024

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 the 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.

17. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re- examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial court to permit recall of such a witness for re- examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to

LNA, J CRP.Nos.2815 & 2858 of 2024

indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out."

20. Thus, from the above judgment, it is clear that power under the

provisions of Order 18 Rule 17 CPC is to be sparingly exercised by the

Courts 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. Such power is to be invoked not to fill up the

lacunae in the evidence of the witness which has already been

recorded, but to clear any ambiguity that may have arisen during the

course of his examination.

21. In the instant case, it is the case of the defendant that since the

cross-examination of P.W-1 was done at his residence and that, due to

non-availability of court records, certain important questions were not

posed to him and as such, it is necessary to recall P.W-1 for further

cross-examination.

22. Perusal of record reveals that the plaintiff has filed his affidavit

in lieu of chief-examination on 03.08.2021 and the plaintiff's side

LNA, J CRP.Nos.2815 & 2858 of 2024

evidence was closed on 26.08.2021. However, the present application

seeking to recall P.W-1 for further cross-examination was filed on

08.11.2023, i.e., after a period of two years from the date of closure of

evidence on plaintiff's side and after the suit had been adjourned

several times at the instance of the defendant and finally, the defendant

reported no further evidence. Thus, all these facts clearly show that the

defendant is trying to fill up the lacuna by way of cross-examination of

P.W-1, but not to clear any ambiguity that may have arisen during the

course of his examination, which in the light of the aforesaid judgment

of the Hon'ble Apex Court cannot be permitted.

23. Further, it is pertinent to note that the facts which the defendant

is intending to prove by way of confrontation to PW-1 are admittedly

the subsequent developments after filing of the suit, that too, after

completion of cross-examination of P.W-1 and therefore, there may

not be any pleadings to that effect in the affidavits filed by either side.

Hence, these aspects cannot be proved by confrontation of the same to

P.W-1 through his further cross-examination.

24. In the light of the foregoing discussion, in the considered

opinion of this Court, these aspects were not properly construed by the

trial Court while allowing the applications by the impugned orders and

LNA, J CRP.Nos.2815 & 2858 of 2024

hence, the impugned orders are unsustainable and are liable to be set

aside.

25. Accordingly, these Civil Revision Petitions are allowed and the

orders, dated 22.03.2024, passed in I.A.No.392 and 393 of 2024 in

O.S.No.283 of 2020 by the IV Senior Civil Judge, City Civil Court,

Hyderabad, are hereby set aside.

26. Pending miscellaneous applications, if any, shall stand closed.

No costs.

                               __________________________________
                                LAXMI NARAYANA ALISHETTY,J
Date:      09.06.2025
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