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Sunday, May 17, 2015

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

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