THE HONOURABLE SMT. JUSTICE RENUKA YARA CIVIL REVISION PETITION No.1109 of 2024

ORDER:

Heard Sri Bankatlal Mandhani, learned counsel for the revision petitioner and Sri Ashish Kale, learned counsel for representing Ms. Manjari S. Ganu, learned counsel for respondent No.10. Perused the entire record.

2. This Civil Revision Petition is directed against the order dated 06.11.2023 in I.A.No.1801 of 2023 in O.S.No.15 of 2013 on the file of the IX Additional Chief Judge, City Civil Court, Hyderabad, wherein a petition filed under Order XVIII Rule 17 read with Section 151 CPC, to recall the witness D.W.2 for cross-examination by the revision petitioner, has been dismissed.

3. The brief facts of the case are that respondent Nos.1 and 2 herein have filed suit vide O.S.No.15 of 2013 for declaration and perpetual injunction against respondent Nos.3 to 11 and the revision petitioner herein. The said suit is at the stage of cross-examination of D.W.2. D.W.2 has been cross-examined by plaintiff No.2/respondent No.2 herein and the cross-examination concluded. Then, the revision petitioner herein/

respondent No.10 in the suit had to cross-examine the witness D.W.2. However, the cross-examination of D.W.2 by the revision petitioner was closed without giving an opportunity on 11.09.2023 as the learned counsel for the revision petitioner could not attend the Court in order to attend his medical examination. Therefore, the petition under revision was filed to recall the evidence of D.W.2 for cross-examination by the revision petitioner.

4. In the grounds of revision, it is pleaded that the trial Court erred in holding that respondent No.2/plaintiff No.2 would protect the interest of the revision petitioner without any reason, that reasonable opportunity was not given by failing to consider the personal difficulty of the learned counsel for the revision petitioner for failure to cross examine DW2 leading to miscarriage of justice. It is pleaded that the order passed is perverse and untenable and therefore, liable to be set aside.

5. During arguments, learned counsel for the revision petitioner submitted that when the matter was posted for cross-examination, he could not attend the Court, as he had to visit a hospital for his medical examination and the cross-examination of D.W.2 was closed without giving an opportunity.

6. In that context, the contention of the learned counsel for respondent No.10 herein is that the revision petitioner is father of respondent No.2/plaintiff No.2 who is Secretary of respondent No.1/plaintiff No.1- Charitable Trust. It is submitted that there is no conflict of interest between the revision petitioner and respondent No.2 and that respondent No.2 has already cross-examined D.W.2 at length running into nearly 50 pages, which covered questions about the alleged Will Deed dated 20.12.1994. The I.A. under revision was filed ostensibly for the purpose of cross- examination on the disputed Will Deed, dated 20.12.1994 and about the said document respondent No.2 has already cross-examined at length. It is also submitted that I.A. under revision and the present Civil Revision Petition are filed only to harass and cause inconvenience to the witness D.W.2 by subjecting him to another round of cross-examination on the same subject matter.

7. In response, learned counsel for the revision petitioner submitted that no assumption can be made about the cross-examination by respondent No.2 being sufficient to protect the interest of the revision petitioner. It is argued that fair opportunity should be given to the revision petitioner to cross-examine D.W.2. Further, reference is made to affidavit wherein the purpose for recalling was to question about the alleged Will Deed on merits.

8. A perusal of plaint in O.S.No.15 of 2013, more particularly, the prayer shows that the suit is filed seeking relief against defendant Nos.2 to 7 only. No relief is sought against defendant Nos.8, 9 and 10. It is also a point to be noted that defendant No.10/re