IMPORTANT POINT
The court established that the power to recall witnesses and seek expert opinions must be used to clarify ambiguities, not to remedy evidentiary deficiencies.

ORDER :

1. These two revisions, under Article 227 of the Constitution of India, by the unsuccessful plaintiff are directed against the orders dated 13.12.2022, of the learned VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge, at Vijayawada, passed in I.A. Nos. 189 of 2020 and 190 of 2020 in O.S. No. 305 of 2006 respectively.

2. Heard Ms. K. Sridevi, learned counsel for the revision petitioner/plaintiff and Sri Y.V. Nagabhushana Rao, learned counsel for the respondent/defendant.

3. Since the parties are same, both these revisions are heard together and are being disposed of by this common order. The parties in these two revisions shall hereinafter be referred to as the plaintiff and defendant, as arrayed in the suit, for convenience and clarity.

4. The facts that lead to filing of these revisions by the plaintiff, in brief, are as follows:

(a) The plaintiff brought the suit against the defendant for recovery of a sum of Rs.21,94,665/- with subsequent interest @ 24% per annum based on the suit promissory note, dated 05.09.2013. The defendant filed written statement resisting the suit. The defendant pleaded that he neither received any amount from the plaintiff nor did execute the suit promissory note and the suit promissory note is rank forgery and is not supported by consideration. It is further stated that the suit promissory note. The suit was filed in collusion with the attestors and the scribe.

(b) During trial, the plaintiff got examined the scribe as PW4 and got filed his chief-examination. In the cross-examination, PW4 deposed certain facts, which are not true and correct. Therefore, the plaintiff intends to re-examine PW4 to put certain questions in order to establish the truth.

(c) Hence, the plaintiff filed these two applications, viz. I.A. No. 189 of 2020 under Order XVIII Rule 17 and Section 151 CPC to recall PW4 and I.A. No. 190 of 2020 under Section 45 of the Indian Evidence Act, 1872, to order for sending the suit promissory note for comparison of the signatures on the disputed promissory note with the admitted signature of the executants, as the defendant pleaded that the suit promissory note is forged.

5. The defendant filed separate counters opposing the applications and contending as follows:

(a) I.A. No. 189 of 2020: The defendant stated that PW4 is the scribe and he categorically stated before the Court in his cross-examination that the pronote was prepared in the office of the counsel for the plaintiff just before filing of the suit and that the defendant was not present at the time of scribing the pronote by him and the defendant did not execute the pronote. Then, the counsel for the plaintiff reported no re-examination of PW4 and the present petition is filed only to fill up the lacunae due to which prejudice to the defendant would be caused.

(b) I.A. No. 190 of 2020: The plaintiff’s evidence was closed. At this stage, the present petition is not maintainable. Moreover, previously, the petitioner/plaintiff filed similar petition and it was dismissed. As such, this petition is not maintainable as hit by the principle of res judicata. The petition is liable to be dismissed.

6. After hearing both parties, the trial Court dismissed both the petitions observing that when the witness (PW4) deposed certain facts in cross-examination, it is for the plaintiff to examine him, if necessary, in re-examination at the same time. The Court further noted that having reported re-examination ‘nil’ it is not proper for the plaintiff to file application for recall of PW4 and that there is no ambiguity in the cross-examination of PW4 and the petition is not maintainable. The trial Court further observed that if the defendant takes the plea of forgery, the burden of proof lies on the defendant and not on the plaintiff, however, in the present case, the plaintiff is seeking expert’s opinion to prove that signature is not forged and the same cannot be permitted.

7. Aggrieved thereby, the plaintiff preferred these