Recall of Witnesses for Cross Examination – Old suit for Partition – Despite of giving one or two opportunities – petitioner not cooperated and conducted cross examination - Aliment of petitioner and his family members is not the sufficient cause for recalling the witnesses - as the Cross Examination can be done by his counsel by taking proper instructions from the petitioner – Trial court dismissed the same – High court confirmed the same and dismissed the revision - 2015-Telangana & A.P.-MSKLAWREPORTS

Seeking recall of PWs.1 to 3 for cross-examination on his behalf – suit for partition - PW.1 filed his affidavit in lieu of chief-examination on 06.02.2013 and thereafter, the matter was posted for cross-examination of PW.1 on 15.02.2013 and 21.02.2013 and again, it was adjourned to 01.03.2013 and 08.03.2013. -  The petitioner herein, who is the 1st defendant in the suit, has failed to cross-examine PW.1.  - In the meantime, PWs.2 and 3 have filed their chief affidavits and they were cross-examined by defendant No.4.  - Now at this stage, recall petition of PWs.1 to 3 is filed.            - Reasons furnished that the petitioner is nearly 70 year old man having certain health problems and his wife and son were challenged persons and he has to take good care of them. - All these factors cumulatively, came in the way of the petitioner herein in cross-examining PWs.1 to 3.  - This explanation has not found favour of the trial Court, as no specific ailment has been set out and further, no material is produced in proof of any such disposition.  - Therefore, the trial Court has rejected the interlocutory application.- Their Lordships held that      It is important to notice that if one is not in a physically sound position to attend to the hearing of the case, he is supposed to instruct his counsel thoroughly so that cross-examination can be carried out by the counsel.  -The presence of a party in a Court hall would only be required for securing any clarification at the last minute.  Therefore, I am convinced that the petitioner herein in spite of being provided with adequate opportunities has not availed the same to cross-examine PWs.1 to 3 and hence, there is no meaning in recalling those witness at this point of time, particularly, when the suit is very old one instituted in the year 2007 and it is almost 8 years since it was instituted and it is required to be disposed of on priority basis. –  
2015-Telangana & A.P. - MSKLAWREPORTS
Non-Cross Examination of witness in Partition suit – Effects - This apart, in a suit for partition, the defendants stand on the same footing as that of the plaintiff, therefore, the petitioner herein is entitled to lead such evidence as he has considered appropriate on his behalf.  However, the Court would show appropriate consideration in that respect, without putting any undue burden on the petitioner herein for his failure to cross-examine PWs.1 to 3.  Accordingly, this revision stands dismissed.-

 2015-Telangana & A.P.-MSKLAWREPORTS


Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

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

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.