ORDER:

This Civil Revision Petition under Article 227 of the Constitution of India by the unsuccessful defendant No.2 is directed against the order dated 02.11.2021, of the learned XI Additional District & Sessions Judge, Krishna, Gudiwada, passed in IA.No.1376 of 2019 in OS.No.33 of 2012 filed under Order XVIII Rule 17 and Section 151 of the Code of Civil Procedure, 1908, to recall DW2 for the purpose of further cross-examination on the evidence given before the Assistant Sessions Judge, Gudivada, in S.C.No.370 of

2011 and for marking denial portion.

2. Heard Sri K.Prudviraj, learned counsel representing Sri K.Chidambaram, learned counsel for the revision petitioner/ defendant No.2. Though the 2nd respondent entered appearance, there is no representation for the 2nd respondent. Though notices were served on respondents 1 & 3, there is no appearance on their behalf.

3. The facts, which are necessary for consideration, in brief, are as follows:

(a) The petitioner herein is defendant No.2 in the main suit. She was examined as a witness (PW2) in S.C.No.370 of 2011 on the file of the Court of Assistant Sessions Judge, Gudiwada. She was cross- examined by her counsel in respect of the transaction between DW1 and herself with regard to execution of the document, dated 07.08.2009, and in relation to amount paid to purchase the property covered by exhibits A4 and B1. PW2 fled her chief examination affidavit in the present case as DW2 against her own evidence given by her in the earlier proceeding in regard to the same subject matter. The material points were confronted to her and the same was recorded by the trial Court. But the said contradictory statement recorded by the trial Court is not marked. She is advised to file a petition to receive the deposition of DW2 given by her in the aforesaid sessions case for the purpose of marking the contradictions with that of her earlier statement. Hence, the present petition was filed with a prayer to receive the deposition of DW2 for the purpose of cross-examination on the evidence given her earlier as PW2 in S.C.No.370 of 2011 to mark contradictions and to recall DW2 for the purpose of marking the contradictions.

(b) The 2nd respondent/2nd defendant filed counter denying the averments in the petition and contending that parties in S.C.No.370 of 2011 and the suit are not one and the same and the subject matter of both the cases are also not one and the same. The suit is not subsequent transaction to S.C.No.370 of 2011 on the file of the Court of Assistant Sessions Judge, Gudivada. The petitioner failed to follow the procedure under Section 33 of the Indian Evidence Act. She did not either admit or contradict the contents mentioned in her deposition in S.C.No.370 of 2011. The petitioner filed this petition after completion of cross-examination of DW2 without filing the certified copy of deposition in time. The petition is filed at a belated stage with a view to harass the respondents. It is further submitted that she did not remember about her previous statements deposed in S.C.No.370 of 2011, and therefore, her statements should not be treated as admission or contradiction and the entire deposition of PW2 in S.C.No.370 of 2011. The petitioner failed to comply with the provisions of Sections 33 and 145 of the Evidence Act. The petition is liable to be dismissed.

4. On a consideration of the rival submissions and the material on record, the trial Court allowed the petition observing that to meet the ends of justice and to avoid miscarriage of justice, it is desirable to afford an opportunity to the petitioner to further cross- examine DW2 in respect of the former statements in the deposition given by her as PW2, subject to the condition that DW2 shall be examined on the date of adjournment, failing which the petition shall stand dismissed.

5. Aggrieved by the said orders, the 2nd respondent/2nd defendant preferred this revision contending that the trial Court failed to appreciate the facts and law in