Andhra Pradesh High Court - Amravati
Gollaboyina Bharah Bhushan Jaya Babu vs Arimilli Srinivas on 23 June, 2020
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
THE HON'BLE SRI JUSTICE M.VENKATA RAMANA
CIVIL REVISION PETITION No.17 of 2020
ORDER:
1. Heard Sri M.Chalapati Rao, learned counsel for the petitioner. None appeared for the respondent, even though notice has been served on him.
2. The grievance of the petitioner is against the order passed by the Court of learned Principal Junior Civil Judge, Chirala in I.A.No.2451 of 2019 in O.S.No.17 of 2018, dated 28.11.2019.
3. The petitioner is the plaintiff. The respondent is the defendant.
4. The suit is laid by the petitioner herein for recovery of Rs.2,71,734/- basing on two promissory notes alleged to have had been executed by the respondent in his favour agreeing to repay the same with interest at 24% p.a and to be paid on demand of respondent.
5. The respondent/defendant resisted the claim of the petitioner, mainly on the ground that there has been enmity between him and the petitioner and the suit promissory notes have been brought out by forgery. He also questioned the capacity of the petitioner to lend such amount. This is how the respondent raised his defence.
6. The respondent/defendant came up with the petition under Order XVIII Rule 17 and Section 151 C.P.C. to recall the petitioner/plaintiff, who was examined as PW.1 for further cross 2 examination. The reason assigned by the respondent was that his learned counsel, who was appearing for him earlier cross examined PWs.1 to 3, even though he was not present and available during that time, of which he was not informed and thus, he was kept in dark. The respondent further stated in his affidavit that he changed his advocate and came to know that several facts were not placed on record in his written statement and cross examination of witness did not reflect upon crucial aspects, which tend to disprove the contention of the petitioner.
7. This attempt of the respondent/defendant was resisted by the petitioner/plaintiff, filing a detailed counter. A reference is made to the nature of proceedings went on in this suit and also opportunity given to the respondent to lead evidence. A reference is also made in the counter of the orders of this court in C.R.P.No.2879 of 2019 dated 15.11.2019, while pointing out that the attempt of the respondent has been a pure abusive of process of law, that did not call for exercise of discretion by the trial Court in terms of Order XVIII Rule 17 C.P.C.
8. However, learned trial Judge, by the impugned order, which is cryptic by all means, choose to give an opportunity to the respondent to cross examine PW.1 further. The relevant observations in the order are extracted hereunder:
"On observing the submissions of both the parties this court come to conclusion that in case the chance of further cross examination of PW.1 not given as petitioner/defendant changed his counsel any irreparable loss may be faced by petitioner/defendant. No loss will be caused to respondent plaintiff if he was recalled and further cross examination. Hence the petition can be allowed, but on costs of Rs.300/- to the plaintiff by 04.12.2019."3
9. Sri M.Chalapati Rao, learned counsel for the petitioner pointing out all these facts and circumstances, strenuously contended that permitting a petition of this nature is nothing but abuse of process and misapplication of Order XVIII Rule 17 C.P.C. It is further contended by the learned counsel for the petitioner that already sufficient opportunity was given to the respondent to set forth his defence and change of advocate cannot be a reason that could have influenced the decision of the trial Court in this matter. Reference is made as to observations of this Court in C.R.P.No.2879 of 2019 in this respect. Thus mainly contending, Sri M.Chalapati Rao, learned counsel requests inference of this Court under supervisory jurisdiction to set right the situation, where the legal process has been abused.
10. Now the point that falls determination is, 'whether the order impugned is proper and if learned trial Judge is right in exercising discretion in favour of the respondent?'
11. The only reason as can be culled out from the affidavit of the respondent filed in the trial Court in support of this petition is change of his advocate and blaming his earlier advocate, for alleged inappropriate and improper advise given to him and/or in conducting the matter.
12. As rightly contended for the petitioner, similar circumstances set out by the respondent when he sought amendment of the written statement that was the subject matter of C.R.P.No.2879 of 2019, was considered and in the order of this Court dated 15.11.2019, it was observed that 4 blaming earlier advocate cannot be appropriate in this context nor can be a substitute to make out a circumstance to support the claim of the respondent. The conduct of the respondent was also considered in the above matter and the attempt of the respondent was found to be with an oblique motive to involve the family members of the petitioner in this litigation, calling the wife of the petitioner as a witness on his behalf.
13. After dismissal of civil revision petition referred to above on 15.11.2019, this attempt was made filing a petition to recall PW.1 on 25.11.2019 and finally, the petition was allowed on 28.11.2019. Ultimately, as directed by the above order, the petition came up for payment of costs in the trial Court on 10.12.2019.
14. Learned counsel for the petitioner, in the course of hearing, informed that the suit is at the stage of defence evidence and it is the same stage, which is continuing right from 04.07.2019.
15. When the background of this case is taken into consideration, when witnesses on behalf of the petitioner were subjected to cross examination on behalf of the respondent sufficiently, which fact is not controverted now, recall of PW.1 on the sole ground of changing the advocate is not proper. In the given facts and circumstances of the case, the cryptic order passed by the learned trial Judge is bad not only for such reason but also for the reason that this order has encouraged abuse of process of law.
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16. Therefore, finding justification in the complaint of learned counsel for the petitioner against the impugned order, this revision petition has to be allowed, setting aside the same.
17. In the result, the Civil Revision Petition is allowed. Consequently, the order in I.A.No.2451 of 2019 in O.S.No.17 of 2018, dated 28.11.2019 of the Court of learned Principal Junior Civil Judge, Chirala is set aside. No costs.
18. Pending miscellaneous petitions if any, shall stand closed.
____________________ M.VENKATA RAMANA, J Date: 23.06.2020 pab 6 THE HON'BLE SRI JUSTICE M.VENKATA RAMANA CIVIL REVISION PETITION No.17 of 2020 DATE: 23.06.2020 pab