Yaparla Pakkira vs Sanka Puduru Lakshmi Reddy

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

The defendant before the learned trial Court has come up with this civil revision petition impugning the order dated 02.04.2019 passed by the learned Junior Civil Judge, Koilakuntla of Kurnool District in I.A.No.140 of 2019 in O.S.No.47 of 2011.

Respondent herein is the plaintiff before the learned trial Court. Notice was served on respondent vide USR No.45421 of 2019. However, no appearance was entered on behalf of the respondent.

Learned counsel for the revision petitioner, Sri M.Chalapati Rao, submitted oral arguments.

Learned counsel submits that the order impugned suffers from material irregularity leading to injustice and therefore, should be upset. O.S.No.47 of 2011 is a suit with a prayer seeking permanent injunction restraining the defendant therein from occupying suit schedule property and thereby preserve the peaceful possession and enjoyment of the plaintiff therein and for costs and for such other reliefs.

Defendant therein put up contest and the suit came up for trial. During trial, PW.1 gave evidence and the matter stood for cross-examination of PW.1. On 28.02.2019 PW.1 was in attendance. However, there was no representation on part of the defendant to cross-examine PW.1 and in those circumstances, the learned trial Court recorded ‘nil’ cross-examination and adjourned the suit for continuation of trial. It is that particular order, which was sought to be rectified by the defendant. With a view to have PW.1 for cross-examination, the defendant in the suit filed I.A.No.140 of 2019 under Order XVIII Rule 17 of C.P.C. with a prayer to reopen the evidence of PW.1 for the purpose of questioning him in cross. By the impugned order dated 02.04.2019, the learned trial Court refused to grant the prayer and consequently, it dismissed that petition. It is that order, which is challenged in this revision stating that in the absence of any mala fides attributed against the revision petitioner, the trial Court ought to have granted the prayer.

A perusal of the order of the learned trial Court would show that on 28.02.2019 during call work the matter was called at the Bench and since it was a part-heard matter, the learned trial judge passed over the matter. Thereafter, it waited for defendant to cross-examine PW.1 till noon time. But none appeared to cross-examine PW.1 and therefore, it recorded the cross-examination as ‘nil’. The order further shows that according to this revision petitioner, when the matter was called at the Bench during call work, a learned junior counsel representing his senior counsel made a submission to the learned trial Court that the learned senior counsel could not appear before the Court as he was suffering from ill-health. Instead of granting an adjournment, the matter was passed over and when the matter was called once again at the Bench, the junior counsel went for lunch and it was in those circumstances adverse order had came to be passed. It is with such averments, the present revision petitioner moved the interlocutory application before the learned trial Court. At page No.4 of the impugned order, the learned trial Court mentioned Order XVII Rule 2(d) of C.P.C. and stated that illness of a counsel could not be a ground for adjournment and therefore, it recorded ‘nil’ cross-examination.

Having heard the submissions of the learned counsel for the revision petitioner and having considered the material on record, the point that falls for consideration is:

Whether in refusing to permit PW.1 to stand for cross-examination in the context of facts is an irregular exercise of jurisdiction by the trial Court?

In a suit on contest leading to trial, cross-examination of a witness is an effective tool for the opposite party to delineate to the Court the worth or otherwise of a witness, so that the Court of law could get better light of the matter for proper adjudication. Therefore, trial Courts shall be more inclined to permit this exercise during trials.

Before the trial Court, the revision petitioner moved the application under Order XVIII Rule 17 of C.P.C. seeking to recall PW.1 for the purpose of cross-examination. The impugned order indicates that the respondent in that I.A., who is the plaintiff in the suit, reported no counter. Thus, all the facts that were averred in the sworn affidavit filed by the revision petitioner before the trial Court during interlocutory proceedings remained unchallenged and by reporting no counter, learned counsel for the respondent therein expressed his willing to concede to the prayer. In other words, the respondent/plaintiff indicated no prejudice to reinvite PW.1 to enable the opposite party to have the cross-examination done. The trial Court ought to have considered those circumstances and could have granted the prayer of the petitioner. However, the trial Court did not choose to do so but was inclined to pass a reasoned order. Having verified the reasons that are available in the impugned order, this Court is unable to subscribe to the views expressed by the trial Court. Order XVII Rule 1(2)(d) of C.P.C. indicates that illness of a pleader when pleaded during the course of trial proceedings, the trial Court is entitled to refuse adjournment provided it records its satisfaction that the party applying for adjournment could have engaged another pleader in time. The impugned order does not indicate any such satisfaction being recorded by the trial Court. Order XVII Rule 1(2)(e) of C.P.C. indicates that when a witness is in attendance and a party or pleader on the opposite side is not ready to cross-examine the witness, it is for the trial Court to record the statement of the witness dispensing with the cross-examination of the witness. The impugned order does not indicate fulfillment of this provision on part of the trial Court. Thus, in the given facts and circumstances, when the sickness of the learned counsel was the cause for failure to cross-examine the witnesses, who is in attendance, and when the opposite party never had any objection for that and when the trial Court did not choose to exercise the jurisdiction in the manner provided under law, such an order cannot be supported and is liable to be upset.

A reading of the impugned order further indicates that on earlier occasion, a similar situation occurred and when on an application of this revision petitioner, PW.1 was recalled and thereafter, he could not cross-examine the witness. It is another reason that influenced the mind of the trial Court not to accede to the prayer of the revision petitioner. Learned counsel for the revision petitioner submits that in a case of this nature, past conduct of the party is immaterial for consideration and it is illegal on part of the learned trial Court to consider such past conduct of the party while rendering the decision which ought to be only concerning the events that took place on 28.02.2019. However, learned counsel further brought to the attention of this Court to various dates of adjournments showing absence of PW.1 on more than 6 occasions and absence of presiding officer because he has been undergoing training on several occasions. Considering these facts, this Court is of the opinion that in an application for recall of a witness what is required to be considered by the learned trial Court is only with reference to the material date on which the witness was in attendance and there was failure of opposite party in non-participation. Since the learned trial Court was engrossed on the past conduct of the revision petitioner, this Court holds that the said approach is inappropriate. For the reasons stated above, the impugned order is liable to be set aside.

Accordingly, the Civil Revision Petition is allowed setting aside the order dated 02.04.2019 in I.A.No.140 of 2019 in O.S.No.47 of 2011 passed by the learned Junior Civil Judge, Koilakuntla, Kurnool District. In effect, I.A.No.140 of 2019 in O.S.No.47 of 2011 stands allowed. PW.1 shall be recalled to stand up for evidence on a date that is to be fixed by the learned trial Court. The revision petitioner/defendant shall conduct cross-examination on the date fixed by the learned trial Court. Since the case has been stalled because of the interim stay granted earlier and considering the fact that immovable property is in dispute and rights of both parties are involved and they are for adjudication since the year 2011, it is expected that the learned trial Court would expeditiously proceed with the case and the revision petitioner should conduct himself vigilantly in prosecuting the legal proceedings before the learned trial Court. There shall be no order as to costs.

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