Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable =
in Vadiraj
Naggappa Vernekar (deceased by L.Rs) v. Sharad Chand Prabhakar Gogate (supra),   
it is held as follows:
        "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
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." 
        
        In the above cited judgment, it is held by the Supreme Court 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 herein above, 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 and the same should be sparingly used in appropriate cases.  
In
the present case on hand, the trial Court was not inclined to exercise its
discretion to allow the application on the ground that it has been filed
belatedly and that to fill up the lacunae which were pointed out during
arguments, as such, the trial Court dismissed the application filed by the
petitioner.  
The above cited judgment will support the case of the respondents.
        In view of the above discussion, I do not find any infirmity or illegality
in the order passed by the Court below in I.A.Nos.200 and 201 of 2013 in
O.S.No.234 of 2007 and the same is hereby confirmed. 

HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY            

C.R.P. No. 2997 OF 2013

13-11-2013

Shaik Gousiya Begum. ..Petitioner


Shaik Hussan and others....   Respondents

Counsel for the Petitioner: Sri K.Narasimha Chary

Counsel for the Respondent: Sri V.Raghu

>HEAD NOTE:  

?Cases referred

1 AIR 1966 Andhra Pradesh 295
2 2011 (3) ALD 174
3 2012 (3) ALD 67 (SC)
4 AIR 2009 Supreme Court 1604
5 AIR 1980 Andhra Pradesh 265(1)

HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY            

C.R.P. No. 2997 OF 2013

ORDER:

        This Civil Revision Petition is filed aggrieved by common order dated
01.07.2013 in I.A.No.201 of 2013 in O.S.No.234 of 2007 passed by the Junior
Civil Judge, Kodad, wherein the Court below dismissed the above petition.
2.      Brief facts which are necessary for disposal of the Civil Revision
Petition are as follows:
        The petitioner/plaintiff filed suit O.S.No.234 of 2007 on the file of the
Junior Civil Judge, at Kodad, on 05.09.2007 and the respondent/defendant filed
written statement on 13.12.2007.  P.W.1 was examined on 21.01.2011.  He was
cross-examined on 26.04.2011.  Thereafter, the defendants' evidence was closed
on 01.04.2013 and at this stage, the petitioner filed I.A.Nos.200 and 201 for
reopening the case to adduce further evidence on behalf of the plaintiff and
issue summons to the plaintiff in respect of Ex.A1.
3.      The case of the revision petitioner is that the revision petitioner
thought that 
the evidence of attester of Ex.A1 is sufficient, as such, she could
not produce the executant of Ex.A1. 
 As per the legal advise, as other side may
take advantage of non-production of executant, it is just and essential to re-
open the case and to issue summons to the executant of Ex.A1.  In order to
disprove the same, the evidence of Smt.Boinapally Bhadramma is essential.
4.      The respondents/defendants filed counter contending that the suit is filed
for perpetual injunction on 05.09.2007 and the written statement filed on
13.12.2007 denying the plaint averments and specifically pleaded that
Boinapaplly Bhadramma has got no right, title or interest over the suit schedule
property.  It is also specifically pleaded that the said Boinapally Bhadramma
cannot transfer better right or title to the petitioner in respect of the suit
schedule property.  It was also pleaded that P.W.1 gave evidence on 21.01.2011
and closed her evidence by examining P.Ws.2 and 3.  It is also stated that the
petitioner was cross-examined on 26.04.2011 as P.W.1 to the effect that the
registered sale deed Ex.A1 was not executed by Boinapally Bhadramma and the   
thumb impressions appearing on Ex.A1 do not belongs to Boinapally Bhadramma.  
P.W.3 is the first attestor of Ex.A1.  He was also cross-examined on 05.03.2012
to the effect that Boinapally Bhadramma never visited Sub-Registrar office on
16.08.2007 nor executed Ex.A1.  In spite of specific denials, the petitioner did
not choose to examine the said Boinapally Bhadramma. D.Ws.1 to 4 were examined  
on behalf of the respondents and after submission of arguments on behalf of the
petitioner, and the matter is coming up for reply arguments.  At this stage, the
petition is not maintainable and not given any valid reasons and sought for
dismissal of the same.
5.      The Court below dismissed the application by common order dated 01.07.2013
holding that the petitioner has filed the petition at belated stage and to fill
up lacunae which were pointed out during arguments. Against the same, the
present Civil Revision Petition is filed.
6.      Learned Counsel appearing for the petitioner submits an opportunity to
party to recall witness for examination, cross-examination or re-examination
cannot be said to be governed by Order 18 Rule 17, if circumstances warrant,
Court can grant such opportunity under Section 151 C.P.C.  He also submits that
there is no embargo to recall a witness after closure of evidence and it is the
discretion of the Court to allow the application having regard to the facts and
circumstances of the case.  At any stage, the Court can recall the witness for
examining or cross-examining.  He also contends that when witness is recalled,
the photograph which is affixed on Ex.A1 sale deed will be shown to the witness
and within two minutes her examination will be completed and no prejudice will
be caused to the respondents by reopening the suit and issuing summons to the
executant of Ex.A1.  In support of his contention, he relied on the judgments
reported in Sultan Saleh Bin Omer v. Vijayachand Sirimal1, Mohd. Hussain Khan 
and others v. National Insurance Co. Ltd., Nanded, Maharashtra State2 and
Rasiklal Manikckchand Dhariwal v. M.S.S.Food Products3.  
7.      On the other hand, learned counsel for the respondents submits that the
application is filed after completion of arguments of both sides and suit is
coming up for reply arguments on behalf of the plaintiff only to fill up the
lacunae and that too at the belated stage.  He contends that even while P.W.1
was cross-examined, specific question was put to P.W.1 that even Ex.A1 is not
signed by executant therein.  At this belated stage, the matter cannot be
reopened and the Court below rightly dismissed the application.  He also
contends that the petitioner cannot abuse the process of Court and that the
power under the provisions of Order 18 Rule 17 is to be sparingly exercised and
in appropriate cases and not as a general rule merely on the ground that his
recall and examination would not cause any prejudice to the parties.  In support
of his contention, he relied on the Judgment reported in Vadiraj Naggappa
Vernekar (deceased by L.Rs) v. Sharad Chand Prabhakar Gogate4, T.Ramachandra     
Murthy v. K.Rama Murthy and others5. 
8.      In the present case on hand, the petition is filed for reopening the case
and for issuing summons to the witness namely Boinapally Bhadramma, who is said
to be executant of Ex.A1, which was filed after evidence of other side is closed
and both the parties advanced their arguments and the matter is coming up for
reply arguments.
9.      The respondents filed written statement in the main suit specifically
pleading that said Boinapally Bhadramma has got no manner of right, title or
interest over the suit schedule property.  It is also alleged that the
registered sale deed was created and brought into existence for the purpose of
the suit.  P.W.1 was also cross-examined on 26.04.2011 to the effect that Ex.A1
was not at all executed by Boinapally Bhadramma and that the thumb impressions
appearing on Ex.A1 do not belongs to her.  P.W.2 was cross-examined on
01.12.2011.  The petitioner also examined the first attestor of Ex.A1 as P.W.3.
He was cross-examined on 05.03.2012 and clear suggestion was put to him that
Boinapally Bhadramma never executed Ex.A1 and the thumb impression appearing on  
Ex.A1 do not belong to her.  Thereafter, defendants were examined as D.Ws.1 to
4.
10.     It is to be noted here that the affidavit of the petitioner is silent as
to on what reasons the petitioner failed to examine her vendor at the earliest
point of time.  The Court below has granted conditional orders even at the time
of commencement of trial and also at the stage of arguments.  The subject
petition is filed on 17.06.2013 after P.W.3 was examined on 05.03.2012.  It
appears from the record that the petitioner is not diligent enough in filing the
petition to summon the said Boinapally Bhadramma at the earliest point of time,
though suggestions were put to other witnesses and P.W.1 herself.  The Court
below, after considering the material available on record, came to the
conclusion that the petition has been filed at belated stage in order to fill up
lacunae.
11.     Learned counsel for the petitioner relied on the judgment reported in
Mohd. Hussain Khan and others v. National Insurance Co. Ltd., Nanded,
Maharashtra State (supra), wherein it is held as follows:
        "11. It is most unfortunate that the lower Tribunal dismissed the
application filed by the petitioner.  The Tribunal ought to have considered that
the claimants 1 and 2 have approached the Tribunal claiming compensation for the
death of their son.  In fact, the Tribunal has to follow its own procedure as it
thinks fit."

        In the above cited case, this Court observed that there is no embargo on
power of Court to recall a witness after closure of evidence.  In the above
case, this Court was dealing with the claim for compensation under Motor
Vehicles Act, Tribunal, strict rules of procedure as contemplated under C.P.C
will not apply. In the above case, when the case was posted for cross-
examination of P.W.1, he was absent on that day.  But in the present case, there
is enormous delay in filing the petition.  The facts in the present case and in
the above case are quite different. Therefore, the above Judgment cannot come to
the rescue of the petitioner.
        In Sultan Saleh Bin Omer v. Vijayachand Sirimal (supra), this Court held
that if circumstances warrant, Court can grant an opportunity to recall witness
for examination, cross-examination or re-examination under Section 151 CPC.
There is no doubt that Court can grant an opportunity to recall a witness, but
in the present case, the Trial Court in its discretion found that the petition
is filed belatedly in order to fill up lacunae.  As such, the same cannot be
found fault with.
        In Rasiklal Manikckchand Dhariwal v. M.S.S.Food Products (supra),  it is
observed by this Court as under:
        69. Recently, in the case of M/s. Shiv Cotex v. Tirgun Auto Plast P. Ltd.
and Ors. (Civil Appeal No. 7532 of 2011) decided on August 30, 2011, this Bench
speaking through one of us (R.M. Lodha, J.), said, ".......Should the court be a
silent spectator and leave control of the case to a party to the case who has
decided not to take the case forward? ........". In paragraph 16 of the
judgment, we stated :
"No litigant has a right to abuse the procedure provided in the CPC.
Adjournments have grown like cancer corroding the entire body of justice
delivery system..........The past conduct of a party in the conduct of the
proceedings is an important circumstance which the courts must keep in view
whenever a request for adjournment is made. A party to the suit is not at
liberty to proceed with the trial at its leisure and pleasure and has no right
to determine when the evidence would be let in by it or the matter should be
heard. The parties to a suit - whether plaintiff or defendant - must cooperate
with the court in ensuring the effective work on the date of hearing for which
the matter has been fixed. If they don't, they do so at their own
peril.........."
        The above cited judgment cannot come to the rescue of the petitioner.
12.     Learned counsel for the respondents relied on the judgment in Vadiraj
Naggappa Vernekar (deceased by L.Rs) v. Sharad Chand Prabhakar Gogate (supra),   
it is held as follows:
        "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
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." 
       
        In the above cited judgment, it is held by the Supreme Court 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 herein above, 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 and the same should be sparingly used in appropriate cases.
In
the present case on hand, the trial Court was not inclined to exercise its
discretion to allow the application on the ground that it has been filed
belatedly and that to fill up the lacunae which were pointed out during
arguments, as such, the trial Court dismissed the application filed by the
petitioner.  
The above cited judgment will support the case of the respondents.
        In view of the above discussion, I do not find any infirmity or illegality
in the order passed by the Court below in I.A.Nos.200 and 201 of 2013 in
O.S.No.234 of 2007 and the same is hereby confirmed.
        Accordingly, the Civil Revision Petition is dismissed.  There shall be no
order as to costs.  As a sequel thereto, miscellaneous petitions, if any,
pending in this Civil Revision Petition, shall stand closed.

_____________________  
A.RAJASHEKER REDDY, J    
13-11-2013.

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