THE HONOURABLE SRI JUSTICE GODA RAGHURAM CRP NO.1449 OF 2007 24-06-2010 Between:
M.Srujana Kumari wife of Sai Prasad Vs.
M.Subba Rao and others ..petitioner …Respondents.
THE HONOURABLE SRI JUSTICE GODA RAGHURAM CRP NO.1449 OF 2007
ORAL ORDER
The 1st respondent herein filed O.S.No.1027 of 2000 before the Principal Junior Civil Judge, Ongole for a declaration of his title of the suit schedule property and for possession, impleading as defendants therein, respondent Nos. 2 to 4 herein and the revision petitioner as 5th defendant. The plaintiff wanted to cross examine PW.3, an Advocate Notary in the suit. As there was some resistance or disinclination, the said individual was produced before the Court on 05-12-2006 on execution of a warrant for production, as PW.3. On 5-12-2006 PW.3 was produced but the junior counsel for the revision petitioner/D-5 represented that PW.3 should be cross examined by his senior. The matter was adjourned to 15-12-2006 for cross examination of PW.3. On 15-12-2006 the junior counsel of the revision petitioner represented that his senior is not available as he was preoccupied elsewhere. In the circumstances the cross examination of PW.3 on behalf of D-5 was recorded as “nil” and the further proceedings in the trial was scheduled commence.
At the above stage, the revision petitioner filed I.A.No.32 of 2007 under Order XVIII Rule 17 of the Code of Civil Procedure,1908 (CPC) to recall PW.3 for cross examination on her behalf (D-5).
The above application was rejected by the court below by recording that with considerable difficulty PW.3 was produced for tendering evidence after execution of a warrant for his production, on 05-12-2006 and the matter was adjourned to 15-12-2006 for cross examination of the said witness on behalf of D-5 on which date further adjournment was sought on the ground that senior counsel for D-5 was not available and that a different ground is now urged in I.A.32 of 2007, wherein it is pleaded that D-5 wanted the cross examination of PW.3 to proceed in the presence of her counsel and as she was indisposed on 15-12-
2006 the cross examination of PW.3 could not proceed and in the circumstances further opportunity should be given for cross examination of PW.3.
This court finds no serious infirmity in the order of the Court below. Order XVIII, Rule 17 CPC enacts the power of the court to recall any witness, who was already examined, at any stage of the suit for the purpose of putting such questions to the witness as the court may deem fit.
This is not a provision which confers a right on a party to recall a witness for cross examining such witness when the party has neglected to cross examine him when he was initially on the stand. Such inherent power of the court as is available under Order XVIII, Rule 17 CPC is a power consecrated in the court to elicit the truth of a matter in dispute between the parties.
The conduct of the revision petitioner or of her counsel in failing to cross examine PW.3 either on 05-12-2006 or 15-12-2006 does not evidence litigative seriousness of this defendant. PW.3 is apparently a professional, an Advocate Notary. Any witness would be inconvenienced on repeatedly being called to the court for giving evidence and a professional is put a greater inconvenience if he or she is unnecessarily required to attend the court repeatedly to give evidence or for cross-examination, on account of the assumed preoccupation of the counsel for the parties or the party himself. A witness is a guest in legal proceedings and he or she ought to be treated with dignity and concern for his/her time. The preoccupation of the senior counsel for the revision petitioner is a totally irrelevant consideration for seeking adjournment for cross examination of PW.3. It is a duty of the revision petitioner to ensure that her counsel is present when the witness (PW.3) comes to the court for being cross examined.
Sri Rajendra Prasad, the learned counsel for the petitioner would however plead that cross examination of PW.3 is vital to the defence of D-5 and that despite the negligent conduct of D-5 in cross examining PW.3 either on 05-12-2006 or 15-12-2006, one more opportunity be provided.
The revision petition was taken up for admission hearing on 13-04-2007 and even before admission an interim stay was granted on 28-06-2007. The revision petition was admitted on 11- 09-2007 and the interim stay granted on 28-06-2007 for a limited period was directed to continue.
In the facts and circumstances of the case, and in view of the vigorous plea by the learned counsel for the petitioner that an opportunity be afforded to D-5/revison petitioner to cross examine PW.3 and in view of her earlier negligence in failing to cross examine PW.3 on two occasions, this court considers it appropriate to permit the petitioner an opportunity to cross examine PW.3, on condition that the cross examination of PW.3 shall be commenced on the date scheduled by the Principal Junior Civil Judge, Ongole and on further condition that no adjournment on what-so-ever ground shall be granted to the revision petitioner for cross examination of PW.3. On date fixed for cross examination of PW.3 the said witness, PW.3 shall be paid an amount of Rs.1,000/- (Rupees One thousand only) by the revision petitioner towards costs for the two adjournments sought earlier for cross examining PW.3. In case future cross examination of PW.3 is warranted on another date (at the discretion of the trial court), PW.3 will be entitled to costs of Rs.1000/- for each day of adjournment, to be paid on the date of each adjournment by the revision petitioner. All such payments must be made in court and recorded as such in the docket. In default of the compliance of any of the conditions imposed herein by the revision petitioner, I.A.No.32 of 2007 in O.S.No.1027 of 2000 shall be deemed to have been rejected.
The Civil Revision Petition is allowed on the conditions above and the order of the court below dated 14-12-2007 is set aside subject to the conditions above. No costs.
GODA RAGHURAM,J 24th JUNE 2010 TSNR