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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
B.R. MADHUSUDHAN RAO, J
Balamani – Appellant
Versus
Smt. Nagamani – Respondent
Civil Revision Petition (CRP) No. 2893 of 2023
For the Appellants/Petitioners:Counsel for Petitioners
For the Respondents:Counsel for Respondents
The court held that a witness can be recalled for cross-examination if the justification is critical to the case's outcome, overturning the lower court's refusal based on a lack of reason.
Headnote:(A) Civil Procedure Code, Order 18 Rule 17 - Recall of Witness - Application to recall witness DW.1 was dismissed since petitioners failed to provide specific reasons for recall and the court concluded that the reasons given did not warrant re-examination based on subsequent witness testimony - Petitioners' claims of witness statements being contradictory were found credible enough to justify the recall of DW.1 for further cross-examination regarding the genuineness of the document Ex.B1 - Court overturned lower court's ruling, allowing recall with imposed costs. (Paras 4, 6, 19)
(B) Witness Recall - A witness cannot be called again merely to fill a gap in evidence; however, if evidence is pertinent to the suit's outcome, the court retains discretion to allow such recall based on justifiable reasons. (Paras 16.1, 18)
Facts of the case:
The petitioners, plaintiffs of a suit seeking partition of land, filed an application to recall a witness (DW.1) after their cross-examination of another witness (DW.2), asserting that DW.1’s testimony on a relinquishment deed was critical for their claims. Concerns were raised about the genuineness of the document that DW.1 presented post-examination.
Findings of Court:
The court determined that the lower court's dismissal of the recall application lacked consideration of the critical nature of the expert testimony and warranted reversal, allowing the recall subject to costs.
Issues: Whether the dismissal of the recall application was justified and whether the lower court correctly exercised its discretion regarding witness recall.
Ratio Decidendi: The court held that the dismissal of the recall application was improper as the reasons stated by the petitioners merited reconsideration; the need for further cross-examination on pertinent evidence decided the suit merits a recall of the witness.
Result: The Civil Revision Petition was allowed, the lower court's order was set aside, and DW.1 was to be recalled under the stated conditions.
| Table of Content |
|---|
| 1. introduction of the civil revision petition against the lower court order. (Para 1 , 2) |
| 2. petitioners seek to recall a witness to verify document genuineness. (Para 3 , 4 , 12) |
| 3. respondents oppose the recall, claiming it's merely an attempt to fill gaps. (Para 5 , 8) |
| 4. the court evaluates if the lower court's order warrants interference. (Para 10 , 11 , 19) |
| 5. court allows petitioners' request for re-examination of dw.1. (Para 18 , 20) |
ORDER
1. This Civil Revision Petition is filed aggrieved by the order dated 11.08.2023 in IA.No.151 of 2023 in OS.No.54 of 2010 passed by the Additional Senior Civil Judge at Mahabubnagar.
2. Petitioners are the plaintiffs and respondents are the defendants in OS.No.54 of 2010 on the file of Additional Senior Civil Judge, Mahabubnagar.
3. Petitioners-plaintiffs have filed IA.No.151 of 2023 in OS.N.54 of 2010 under Order 18 Rule 17 r/w Section 151 of Civil Procedure Code (for short ‘CPC’) to recall DW.1 (Pandri) for further cross-examination.
4. It is stated in the affidavit (IA.No.151 of 2023) that initially petitioner Nos.1 and 2 filed suit for partition and separate possession of the suit schedule property i.e., land admeasuring Acs.4-25 guntas in Sy.No.848/E, land admeasuring Acs.6-00 guntas in Sy.No.913/UU, total extent Acs.10-25 guntas situated at Gangapur Village, Jadcherla Mandal, Mahabubnagar District with specific boundaries. The husband of respondent No.1 is examined as DW.1 and he was cross-examined on 11-07-2023, he has created Ex.B1 document and filed subsequently after the written statement with an intention to deprive the legitimate share of the petitioners-plaintiffs, to ascertain certain facts about the geniuses of Ex.B1, it is just and necessary to recall DW.1 for further cross-examination.
5. Respondents have filed their counter and denied the averments made in the affidavit and further contended that a reference is made in the written statement with regard to Ex.B1 and the petitioners are aware about the genuineness of the document. Petitioners’ counsel has cross-examined DW.1 after two or three adjournments and they failed to mention exact reasons to recall DW.1, the absence of specific reasons for recalling the witness cannot be allowed and the application is filed to fill up the lacunas after the examination of DW.2 and prayed to dismiss the same.
6. The learned Trial Court after hearing the counsel on record has dismissed the application vide IA.No.151 of 2023 (Order 18 Rule 17 of CPC) holding that the petitioners did not whisper any specific reason to recall DW.1 and dismissed the same vide order dated 11.08.2023 which is challenged in the CRP.
7.1. Learned counsel for the petitioners-plaintiffs submits that the order of the Court below is without considering the petition contents and the alleged Ex.B1 which was created for the purpose of the suit after the death of the sole defendant (respondent No.1 herein). The learned Trial Court simply recording the representation of the junior counsel without considering the facts of the pleas, dismissed the recall application and also failed to consider that Ex.B1 is unregistered document and there is no specific pleadings in the written statement. The reasons mentioned by the learned Trial Court are incorrect and failed to consider that Ex.B1 was brought on record subsequently and prayed to set aside the impugned order.
7.2. The present counsel came on record at the time of cross-
examination of DW.2.
8. Learned counsel for the respondents-defendants submits that the learned Trial Court has properly appreciated the facts of the case and rightly dismissed the application filed by the petitioners-plaintiffs to recall DW.1 and the application came to be filed after the cross- examination of DW.2, to fill up the lacunas in case of the petitioners, which is not permissible under law. In support of his contention he relied on the decisions in the cases of (1) Vadiraj Naggappa Vernekar (deceased by L.Rs.) Vs. Sharad Chand Pr
