2019 Supreme(AP) 20
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
D.V.S.S. SOMAYAJULU, J.
Velugu Eswaramma and Ors. - Appellant
Vs.
Velugu Shoba Rani - Respondents
CRP Nos. 7435 and 7439 of 2017
Decided On : 28-03-2019
Advocate Appeared:
For the Appellant : Rajanikanth Jwala
For the Respondents: D. Sudarshan Reddy
Headnote:
Civil Procedure Code, 1908 – Order XVIII Rule 17 – Section 151 – Revision Petition –
Whether Court committed an error in coming to conclusion that there are no grounds to reopen or to recall witness – Held, Court in two civil revision petitions holds that affidavit filed to recall witness does not meet standards laid down by Hon'ble Supreme Court of India in judgments – Failure to cross-examine witness on certain aspects by itself is not a ground enough to recall witness for purpose of further cross-examination – Court holds that both civil revision petitions do not have any merits – Therefore, Civil revision petitions dismissed (Para 16 and 17)
Facts of the Case:
Question that arises in this appeal is that Whether Court committed an error in coming to conclusion that there are no grounds to reopen or to recall witness therefore filed Revision Petition
Whether Court committed an error in coming to conclusion that there are no grounds to reopen or to recall witness
Findings of the case:
Court in two civil revision petitions holds that affidavit filed to recall witness does not meet standards laid down by Hon'ble Supreme Court of India in judgments – Failure to cross-examine witness on certain aspects by itself is not a ground enough to recall witness for purpose of further cross-examination – Court holds that both civil revision petitions do not have any merits
Result: Civil revision petitions dismissed
D.V.S.S. Somayajulu, J.
1. Both these civil revision petitions arise out of the same suit in O.S. No. 20 of 2010 on the file of the Additional Senior Civil Judge, Kadapa.
2. IA No. 483 of 2017 which was filed to reopen the matter was dismissed on 27.1.2017. Questioning the same, CRP No. 7435 of 2017 is filed.
3. IA No. 484 of 2017 which was filed to reopen the evidence for cross-examination of P.W. 1 was dismissed on 24.8.2017. Questioning the same, CRP No. 7439 of 2017 was filed.
4. With the consent of both the Counsel the matters are taken up for hearing together. The arguments were essentially advanced in CRP No. 7439 of 2017. This Court has heard Sri Jwala Rajanikanth, learned Counsel for the revision petitioners and Sri Duddugunta Sudarshan Reddy, learned Counsel for the respondent.
5. The contention of the learned Counsel for the petitioners is that the Court below committed an error in coming to the conclusion that there are no grounds to reopen or to recall the witness-P.W. 1. It is his contention that the Court could have allowed the application and that the past mistakes of the revision petitioners could not have been considered as a ground for rejecting the present application. It is also his contention that Order XVIII Rule 17 and Section 151 of C.P.C. are applicable to the facts and circumstances of the case and that therefore, the Court should have allowed the application. It is his further contention that the valuable right that is given to a party to cross-examine the witness has been taken away by this Order. Learned Counsel relies upon the judgments of the Hon'ble Supreme Court reported in Vadiraj Nagappa Vernekar (Dead) through L.Rs. v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410 : K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275 and Ram Rati v. Mange Ram (Dead) through Legal Representatives and others, (2016) 11 SCC 296. He therefore prays the revision petitions should be allowed.
6. In response to this, learned Counsel for the respondent relies on two judgments of the Single Judges of this Court reported in Cheerla @ Cuddapah Naganna v. Koya Naganna, 2008 (2) ALT 595 and Allumalla Kannam Naidu v. Allumalla Simhachalam, AIR 2003 AP 239, to contend that the affidavit filed is absolutely silent about the need to re-examine the witness and the reasons furnished in the application are not genuine or correct. Learned Counsel and in fact points out that certain important legal aspects have to be brought out is the reason given in the application. He also points out that in fact number of adjournments were taken by the petitioners and the same is reproduced in the order. Therefore, learned Counsel submits that the impugned orders do not suffer from any infirmity.
7. In both the cases the law relied upon by both the parties is very germane and relevant to the cases on hand. The Hon'ble Supreme Court of India clearly noticed the principles that are involved in an issue like this. This first judgment of the Hon'ble Supreme Court of India reported in Vadiraj Nagappa Vernekar's case (supra), decided as follows:
“25. In our view, though the provisions of Order 18 Rule 17 C.P.C. 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 and 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.
26. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, as 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 prepared.
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31. Some of the principles akin to Order 47 C.P.