Andhra HC (Pre-Telangana)
Allumalla Kannam Naidu vs Smt. Allumalla Simhachalam on 20 January, 2003
Equivalent citations: AIR2003AP239, AIR 2003 ANDHRA PRADESH 239
ORDER P.S. Narayana, J.
1. Heard Mr. Sridhar representing Smt. Bhaskara Laxmi and Sri Subrahmanyam, the counsel representing the respective parties.
2. The Civil Revision Petition is filed under Section 115, C.P.C. by the revision petitioner aggrieved by an order dated 17-9-2002 made in LA. No. 1725 of 2000 in O.S. No. 94 of 1997 on the file of the Principal Junior Civil Judge, Vizianagaram. The said application was filed under Order 18, Rule 17 of the Code of Civil Procedure (herein after referred to as code in short) for the purpose of recalling PW 2, for permitting the petitioner to cross-examine on the other important crucial aspects. The learned Principal Junior Civil judge, Viziariagaram, had dismissed the said application with costs and hence, the present revision is filed.
3. Notice before admission was ordered and the respondent is represented by the counsel referred to supra.
4. The learned counsel for the revision petitioner, the petitioner in LA. No. 1725 of 2002 in O.S. No. 94 of 1997 on the file of the learned Principal Junior Civil Judge, Vizianagaram and the 1st defendant in the suit had submitted that in para No. 3 of the affidavit filed in support of application reasons had been mentioned and despite the same, the Court below placing reliance on a decision in Nagumothu Sriharinath v. Nagumothu Vani (1997) 5 Andh LT 209, had dismissed the said application. The learned counsel also contended that the questions which are to be put to a witness need not be stated in the affidavit, since the very purpose of recalling the witness will be defeated in such case. The learned counsel also had drawn my attention to the decisions in Pantham Brahmam v. Gollipalli Swaminaidu (1997) 2 Andh LT 652, Saleh Bin Omer v. Vijayachand, and Shankara Bhat v. Bheema Bhat, AIR 1974 Kant 123 and had contended that recalling of a witness can be either suo motu or on the application of a party, and hence, in view of the same, the dismissal of the application placing reliance on Nagumothu Sriharinath's case (supra) cannot be sustained. The learned counsel had taken me through the order impugned in the C.R.P. and also the contents of the affidavit filed in support of the application before the learned Principal Junior Civil Judge, Vizianagararn.
5. Per contra, Sri Subrahmanyam, the learned counsel representing the respondent plaintiff had contended that except stating certain crucial aspects nothing had been stated in the affidavit and on the strength of such vague allegations, an application to recall a witness cannot be allowed. The learned counsel also had drawn my attention to the limitations of the revisional jurisdiction and also had contended that except for the purpose of filing the lacunae, which is not permissible in the facts and circumstances of the case, there is no other justifiable reason to recall the witness as prayed for by the petitioner.
6. Heard both the counsel at length and also perused the material available on record. The application in I.A. No. 1725 of 2002 in O.S. No. 94 of 1997 on the file of the learned Principal Junior Civil Judge, Vizianagram was filed to recall PW 2 and to permit the petitioner to cross-examine the other important crucial aspects which are not cross-examined earlier coupled with the documentary evidence available with the petitioner. In the affidavit filed in support of the application, at para No. 3 it was averred as here under :
"In the above case one Chekka Kannam Naidu, S/o Musali Naidu, R/o Bonagi village examined as PW 2 in the above case. In his evidence the PW 2 deposed certain allegations as alleged against me. As on the date when the PW 2 was cross examined certain important and crucial aspects are not cross-examined by my counsel, as I could not produce the relevant papers to my counsel as on the date of examination of PW 2. The said factors will reveal the truth with reference to the case on hand. Hence, the said witness is to be further cross-examined in those aspects."
7. The learned Principal Junior Civil Judge, Vizianagararn had arrived at a conclusion that these reasons are not sufficient reasons for ordering of recall of a witness and had ultimately dismissed the application. In Nagumothu Sriharinath's case (supra), where the ground raised for recalling a witness was that the counsel did not put certain material questions to witness when he was cross examined. It was held to be not a relevant ground for granting permission. No doubt, the learned Principal Junior Civil Judge, Vizianagararn at para No. 8 of the order had placed strong reliance on the decision of Nagumothu Sriharinath's case (1997 (5) Andh LT 209) (supra) and had dismissed the said application. In Panthdam Brahmam's case (1997 (2) Andh LT 652) (supra) it was held that under Order 18. Rule 17 of the code, the Court is competent to recall a witness for further examination not only suo motu but also an a petition filed by either party. In Saleh Bin Omer's case (supra) (his Court while dealing with the aspect of recalling a witness held that the Court can suo motu or at instance of party, recall witness and put questions to him and ordinarily no cross examination is allowed upon answer without leave of Court and an opportunity to party to recall witness for examination, cross-examination or re-examination cannot be said to be governed by Order 18, Rule 17 of the code and if circumstances warrant. Court can grant such opportunity under Section 151 of the code. In Shankara Bhat's (AIR 1974 Kant 123) (supra) if was held that the right to put question to the witness under Order 18, Rule 17 is not restricted to action of its own motion and it can recall a witness at the instance of the party. The same view was expressed in Madhubhai Amthalal v. Amthalal Nanalal, AIR 1947 Bombay 156. In the present case as the application is moved by the party under Order 18, Rule 17 of the Code for recalling a witness, it is one thing to say that the application is maintainable and it is yet another thing to decide whether in the facts and circumstances of the case such application has to be allowed or not. There is no serious controversy between the parties on the maintainability of the application and the application even at the instance of the party can be maintainable under Order 18, Rule 17 of the Code depending upon the facts and circumstances of a particular case. However, in the present case as can be seen from the averments made in the affidavit filed in support of the application except making a bald statement of omission to put some crucial questions, absolutely there are no convincing reasons at all and on the strength of such an affidavit filed in support of the application, I am of the considered opinion that recalling of a witness cannot be ordered and in this view of the matter, absolutely there is no illegality committed by the learned Principal Junior Civil Judge, Vizianagaram in making the said order. There is no error in exercise of jurisdiction by the learned Principal Junior Civil Judge, Vizianagaram and hence, there are no merits in the present civil revision petition and accordingly the Civil Revision Petition is dismissed. No costs.