HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL REVISION PETITION Nos.5065 and 5067 of 2013 % 17.07.2014 Between:
# A.R.K.Raju, S/o A.S.Raju . Petitioner And:
$ A.V.S.Raju, S/o A.S.Raju . Respondent < Gist:
> Head Note:
! Counsel for the Petitioner: Sri N.Sreedhar Reddy ^ Counsel for the Respondent: Sri Kasireddy Jagathpal Reddy ? Cases Referred:
(2009) 4 SCC 410 HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL REVISION PETITION Nos.5065 and 5067 of 2013 Date:17.07.2014 Between:
A.R.K.Raju, S/o A.S.Raju And:
A.V.S.Raju, S/o A.S.Raju ……Petitioner ..…Respondent Counsel for the petitioner: Sri N.Sreedhar Reddy Counsel for the respondent: Sri Kasireddy Jagathpal Reddy The Court made the following:
HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL REVISION PETITION Nos.5065 and 5067 of 2013
COMMON ORDER:
These two Civil Revision Petitions arise out of separate, but identical orders, dated 07.11.2013, passed by the learned II Additional District and Sessions Judge, Ranga Reddy District at L.B.Nagar in I.A.Nos.3496 and 3498 of 2013 in O.S.No.242 of 2005.
I have heard Sri N.Sreedhar Reddy, the learned counsel for the petitioner and Sri Kasireddy Jagathpal Reddy, the learned counsel for the respondent.
The respondent filed O.S.No.242 of 2005 for partition of the suit schedule properties. The petitioner also filed another suit, for cancellation of a release deed, which is stated to have been clubbed with O.S.No.242 of 2005 and joint trial is being conducted. The respondent has pleaded in the suit that the petitioner, being his elder brother, has played fraud on him and got the release deed executed without paying any consideration therefor and therefore, he is entitled to partition of the suit schedule properties.
On 12.08.2013, the petitioner has filed affidavit in lieu of his chief-examination as DW-1. On 24.08.2013, the respondent has cross-examined DW-1. Later, the respondent has come out with two applications, viz., I.A.No.3496 of 2013 for reopening the case for further cross-examination of D.W-1 and I.A.No.3498 of 2013 for recalling DW-1 for further cross-examination. By separate orders, which can be appropriately called cryptic and laconic, the lower Court has allowed the said applications on imposition of costs of Rs.500/- in each case payable to the District Legal Services Authority.
A perusal of these orders would undoubtedly disclose that the lower Court has failed to perform its duty of giving reasons for allowing the applications. Ordinarily, this Court would have set aside the orders and remanded the matter to the lower Court for passing fresh orders after hearing both sides. However, considering the fact that the suit is of the year 2005 and remanding the cases to the lower Court would inevitably cause further delay in disposal of the suit, I am inclined to consider the case and adjudicate the same on merits In his affidavit, filed in support of the applications, the respondent herein has inter alia stated that he has to establish the fraud and mis-representation of the petitioner alleged by him in the plaint; that in the cross- examination of DW-1, when a question in respect of Vengalraonagar property was sought to be put to him, the same was not allowed by the lower Court on the ground that O.S.No.616 of 1999 filed by the respondent was already disposed of; that DW-1 has deposed that the payment made by him to the respondent is shown in the Income Tax returns; and that when the respondent has got a legal notice issued to the petitioner calling upon him to give the particulars of the Income Tax returns, the latter did not respond to the same and that as such, the respondent may be permitted to further cross-examine DW-1.
Order XVIII Rule-17 of the Code of Civil Procedure empowers the Court to recall any witness who has been examined at any stage of a suit to put such question to him as the Court thinks fit. Thus, the power of recalling a witness is vested in the Court primarily for seeking clarification on any of the aspects arising in the suit. In Vadiraj Naggappa Vernekar Vs.
[1]
Sharadchandra Prabhakar Gogate , the Supreme Court has dealt with the scope of this provision. It has, inter alia, held that the main purpose of this Rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties, though this provision has been interpreted by the Courts to include applications to be filed by the parties for recalling of witnesses. The Supreme Court further held that this provision is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. The Supreme Court further held that the power under the provisions of Order XVIII Rule-
17 C.P.C. is to be sparingly exercised in appropriate cases, and not as a general rule merely on the ground that recall and re-examination of the witness would not cause any prejudice to the parties.
In the light of the above settled legal position, if the case of the respondent is examined, the applications filed by him do not deserve to be allowed.
The ground on which the respondent has filed the applications is that since the petitioner has got the release deed executed by him by playing fraud without paying consideration, that the burden lies on him to prove these allegations and that therefore, further questions have to be put to DW-1 on payment of consideration for execution of the release deed. Though the burden lies heavily on the respondent to prove fraud, in my opinion to the extent of the factum of passing of consideration, the burden to prove the same lies on the petitioner as, he is the one who asserted that the release deed was executed for consideration. The respondent has already cross-examined the petitioner in this regard. If DW-1 in his cross-examination has stated that the alleged payment made to the respondent was reflected in Income Tax returns, the onus lies on him to prove this statement by adducing evidence. Therefore, it was totally unnecessary for the respondent to have caused a legal notice issued to the petitioner to furnish the particulars of the Income tax returns and seek recalling of DW-1 for further cross-examination for putting questions in that regard. More over, on the respondent’s own showing, during the cross-examination of DW-1, he has referred to the Income tax returns having reflected the payment of consideration. That being so, nothing prevented the respondent from putting relevant questions in that regard to DW-1 during his cross-examination itself. By seeking to recall DW-1 for further cross-examination, the respondent is attempting to fill the gaps/lacunae left by him. This is simply not permissible under Order XVIII Rule 17 C.P.C.
I am, therefore, of the opinion that the ground on which the respondent sought to recall DW-1 for further cross-examination is totally unsustainable and non- existent. The lower Court has utterly failed to examine this aspect and erroneously allowed the applications even without assigning any reasons whatsoever.
For the above-mentioned reasons, the orders under revision are set aside and both the Civil Revision Petitions are, accordingly, allowed.
As a sequel to disposal of the Civil Revision Petitions, interim orders, dated 12.12.2013, in CRPMP.Nos.7031 and 7033 of 2013 are vacated and CRPMP.Nos.7031 and 7033 of 2013 are disposed of as infructuous.
17th July, 2014 Note:
LR copies to be marked. B/o DR
[1] (2009) 4 SCC 410
JUSTICE C.V.NAGARJUNA
REDDY