Desavath Meribai vs Ramavath Tiribai

Dr. V.R.K. Krupa Sagar, J

This revision questions the refusal of the learned trial Court in recalling Pw.1 to offer Pw.1 for cross examination by 4th defendant. Such refusal took place by Order dated 06.05.2019 of the learned Junior Civil Judge, Vinukonda in I.A.No.123 of 2019 in O.S.No.173 of 2012.

Aggrieved by that Order the 4th defendant in the suit filed this revision under Article 227 of the Constitution of India, stating that the respondent herein filed the suit for permanent injunction claiming title and possession and the suit is under contest. This revision petitioner/D4 is a woman aged about 72 years and there is no one to look after the litigation on her behalf and there is a communication gap between her and her Advocate and therefore she could not properly prosecute the case and because of this communication gap the evidence of Pw.1 was closed by the trial Court on 06.03.2019, since on that day neither the revision petitioner nor her learned counsel could attend before the trial Court. After closure of evidence it was on 08.05.2019 petitioner filed an application to reopen the evidence of Pw.1, but the trial Court dismissed it without assigning any reasons and failed to consider the averments of this revision petitioner contained in her affidavit filed before the trial Court and deprived of her an opportunity to cross examine Pw.1 which would cause irreparable injury to the petitioner and the Order of the trial Court is perverse. For these reasons this revision is filed seeking to set aside the Order to the trial Court dated 06.05.2019.

The respondent herein is the plaintiff. Learned counsel appearing for the respondent submits that revision petitioner prolonged the litigation for no reason and without any reasons failed to cross examine Pw.1 and cause went further and several opportunities were given and despite conditional order and despite imposition of costs, this revision petitioner did not choose to cross examine the Pw.1 and the impugned Order is in accordance with facts and law and any interference is not required.

Learned counsel on both sides submitted their arguments.

Now the point falls for consideration is:-

Whether the impugned Order suffers from irregularity or is infirm requiring any interference?

POINT:-

O.S.No.173 of 2012 is a suit filed by the plaintiff against the four defendants shown as Defendant Nos.1 to 4, seeking protection of possession of about Ac.3.00 of land by way of permanent injunction. The suit was contested by the defendants and it went for trial. Collection of evidence commenced before the trial Court. The first witness on behalf of the plaintiff is Pw.1 who filed examination in chief by way of affidavit and that was accepted and the witness was to be cross examined by the defendant. During the course of hearing of this revision, it is stated that on behalf of rest of defendants cross examination of Pw.1 was done. However, it was Defendant No.4 who failed to cross examine Pw.1 and during subsequent days that resulted in forfeiture of right to cross examine Pw.1 by defendant No.4 occurred. This revision petitioner in her application in I.A.No.123 of 2019 filed her sworn affidavit as to why she was unable to cross examine Pw.1. Para No.2 of that affidavit is extracted here in verbatim:-

“I submit that the plaintiff in the above suit who was examined as Pw.1 filed her chief examination affidavit on 11.09.2018 as the plaintiff did not produce any evidence and as I could not cross examine the Pw.1 the Hon’ble Court pleased to close the evidence of the plaintiff and posted for the defendants evidence. As a old women I could not prosecute the case.”

The prayer in the said application filed under Sec.151 C.P.C is extracted here:

“ For the reasons accompanying this affidavit that the Hon’ble Court may be pleased to reopen the evidence of Pw.1 which was closed on 06-03-2019.”

In response to this petition the respondent in that application filed counter. Para No.3 of the counter is relevant and it is extracted here in verbatim:

“ It is submitted that the matter was stands postedto12.03.2018,21.03.2018, 16.04.2018,13.06.2018,25.07.2018, 20.08.2018, 04.09.2018, 11.09.2018 and also 27.09.2018 on costs of Rs.200/- to cross examination of the Pw.1 by the petitioner herein. For every adjournment the respondent here in had been regularly attend before the Hon’ble Court, but the petitioner’s counsel reported the matter is not ready. Finally on 11.09.2018 from the petitioner side reported no representation was recorded by the Hon’ble Court and forfeited the cross examination of Pw.1. The Hon’ble Court has given many opportunities to the petitioner to cross examination of Pw.1. Once the Hon’ble Court forfeited the cross examination of Pw.1 by the petitioner she has no right to file the petition to reopen the evidence of Pw.1. As such the petition is liable to be dismissed according to law.”

It is on those rival submissions the learned trial Court passed the impugned Order stating that for the purpose of cross examination of Pw.1 the suit was adjourned to 11.09.2018 and from then it was adjourned to 27.09.2018 and from then it was adjourned to 11.10.2018. On those occasions D4/the present revision petitioner was not in attendance and no one was representing her case. It was in those circumstances, the learned trial Court forfeited the right of defendant No.4 to cross examine Pw.1 on 11.10.2018. Thus the right to cross examine Pw.1 was lost for the revision petitioner on 11.10.2018. It was that Order which she is supposed to challenge. But the petition under Sec.151 C.P.C. filed by her before the trial Court seeking to reopen the evidence of Pw.1 narrates that the Order impugned is 06.03.2019. Thus the revision petitioner is so negligent in not even caring to know what exact date on which her right to cross examine Pw.1 was lost. What happened on 06.03.2019, as could be seen from the 5th paragraph of the impugned Order is that, after closure of cross examination of Pw.1 the suit was adjourned to 06.03.2019 directing the defendant including this revision petitioner for evidence on their behalf. Since this revision petitioner did not attend and there was no representation, the evidence on behalf of D4/this revision petitioner, was closed on 06.03.2019. Therefore, the Order dated 06.03.2019 is with reference to the closure of evidence of D4 but not the forfeiture of right to cross examine Pw.1. Be that as it may. The long cause title of the plaint shows the age of Defendant No.4 as 50 years in the year 2012 when the suit was filed. The sworn affidavit of Defendant No.4 filed in I.A.No.123 of 2019 shows her age as 57 years in the year 2019. This revision was filed in the year 2019 and in the grounds of revision at Para 10 the age of the revision petitioner is sated as 72 Years. Thus revision petitioner for the purpose gaining sympathy, perhaps, is purposefully showing herself as older than what she really is. Be that as it may.

It is a fact that, revision petitioner and her learned counsel were not in attendance and did not cross examine Pw.1 on all occasions when the matter was posted to and Pw.1 was in attendance. The trial Judge had offered more than one opportunity to the revision petitioner to cross examine Pw.1 and he was benevolent to grant such time, though there was no representation on behalf of the revision petitioner. In this revision such order is criticisized as perverse and as one against the principles of natural justice. That is something that cannot be countenanced. Be that as it may.

What is most material to see is what prevented this revision petitioner from cross examining Pw.1. In her sworn affidavit before the trial Court she stated that she could not cross examine because she is an old woman and could not prosecute the case. In this revision a little more is added to it stating that there was communication gap between her and her Advocate. 57 years of age do not make one very old. Why she could not communicate with her counsel and in the alternative why her counsel did not communicate to her are to be explained. They are not explained. Thus, there is absolutely no reason assigned before the trial Court or before this Court for the failure of the revision petitioner who failed to avail multiple opportunities granted by the trial Court. This conduct of the revision petitioner is against law that is contained in Order XVII C.P.C. That provision speaks about continuous hearing of the suit from day to day, completion of evidence of every witness who is in attendance on that day on which the matter is posted and what is to be done when the witness is in attendance and the opposite party either fails to attend or in attendance but doesn’t participate in the trial. The impugned Order is in accordance with the established principles. When a revision petitioner seeks indulgence of a Court of law and requests the Court to be liberal what is required is a genuine reason explaining the failure on the part of the party. The facts available on record do not have even a semblance of any such reasonable cause. This Court finds no error in the impugned Order. There are absolutely no merits in the revision. Hence point is answered against the revision petitioner.

In the result, this Civil Revision Petition is dismissed with costs.

As a sequel, miscellaneous petitions, if any pending, shall stand closed.