[HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.2332 OF 2013 Dated 25-7-2014 Between:
Kadagala Rajamma.
And:
..Petitioner.
Kadagala Atchayamma @ Rajamma and another.
…Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.2332 OF 2013 ORDER:
This petition is filed against the order dated 2-3-2013 in I.A.No.113 of 2013 in O.S. No.46 of 2004 on the file of Junior Civil Judge, Kothavalasa.
The petitioner herein is first defendant in the above referred suit.
The suit is filed for declaration and injunction and the first defendant filed the above petition to recall P.W.1 for further cross- examination with reference to Exs.A.3 to A.16 documents that are marked on plaintiff’s side. The said application is resisted by plaintiff. On consideration of the contentions and rival contentions, learned trial judge dismissed the application holding that the petitioner has not stated in his petition as to the aspect on which Exs.A.3 to 16 are to be cross-examined and that there are no such details in the petition.
Heard both sides.
Advocate for petitioner submitted that P.W.1 was examined on 6-2-2013 and this petition is filed to recall P.W.1 on 18-2-2013 and there is no delay in making a request. He submitted that since it is a matter of cross- examination, on what aspects party has to be cross examined, cannot be disclosed and if disclosed the very purpose of cross-examination will be defeated. He submitted when it is disclosed in the petition that defendant wants to cross-examine with reference to Exs.A.3 to A.16 an opportunity should have been given to the petitioner.
On the other hand, learned advocate for plaintiff- respondent submitted that the trial court rightly considered the objection of the plaintiff and that there are no grounds to interfere with the findings of the trial court. In support of his arguments, he placed reliance on a decision of Honourable Supreme Court in VADIRAJ NAGGAPPA VERNEKAR (DEAD) THROUGH LRS. v.
[1]
SHARADCHANDRA PRABHAKAR GOGATE ( ).
Referring to this decision, he submitted that a witness cannot be recalled for the purpose of filling up lacunas.
He further submitted failure to put some questions with reference to Exs.A.3 to A.16, is not a ground to recall witness and it would amount to filling up of the lacunas.
I have perused the material papers and impugned order.
Admittedly, the suit is filed for declaration and injunction and plaintiff is examined as P.W.1 and after completion of plaintiff’s evidence, the matter is posted for defendant’s evidence and at that stage, this application is filed making a request to recall P.W.1 for further cross on the aspect of documents Exs.A.3 to A.16.
Now the contention of the plaintiff is that this would amount to filling up of lacunas.
As seen from the petition filed for recalling a witness, it is stated in the said petition that petitioner’s advocate has forgotten to put some questions with reference to documents Exs.A.3 to A.16 and since those documents are material, it is necessary to give an opportunity to the petitioner for further cross examination of P.W.1. When an affidavit is filed stating that Exs.A.3 to A.16 are material documents and his advocate forgotten to put some questions on those documents, only verified counter is filed and no counter affidavit is filed disputing the said allegations.
Here the simple point is whether the request made by the petitioner would amount to filling up of lacunaes or not.
When the defendant has not put any questions with reference to documents Exs.A.3 to A.16, it will not amount to filling up of lacunaes and when it is specifically stated that his advocate forgotten those questions, the trial court ought to have considered the same liberally and if the petitioner was permitted at that time, by this time, the suit would have been disposed of and on account of refusing small request, the suit is pending at the same stage all these years.
Considering the facts and circumstances and material available on record, I feel that an opportunity should be given to the petitioner but, however, the petitioner has to cross-examine witness without taking any further time on a fixed date and proceed with producing evidence on his side and to see that trial is completed at an early date.
For these reasons, this Civil Revision Petition is allowed and the order dated 2-3-2013 in I.A.No.113 of 2013 in O.S. No.46 of 2004 on the file of Junior Civil Judge, Kothavalasa, is set aside by allowing the petition to recall P.W.1 for further cross-examination only with reference to documents Exs.A.3 to A.16 and the petitioner shall cross-examine the witness within one month from the date of receipt of copy of this order and the trial court shall complete the trial of the suit within six months thereafter.
As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 25-7-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CIVIL REVISION PETITION No.2332 OF 2013 Dated 25-7-2014
[1] (2009) 4 SCC 410