Andhra Pradesh High Court - Amravati
Vitta Kristappa vs E Guru Reddy on 20 March, 2025
APHC010005682025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3311]
(Special Original Jurisdiction)
Thursday, the Twentieth day of March
Two Thousand and Twenty Five
Present
The Honourable Ms Justice B.S.Bhanumathi
Civil Revision Petition No: 100 of 2025
Between:
Vitta Kristappa(died) rep. by LRs and others ...petitioners
and
E Guru Reddy and others ...respondents
Counsel for the petitioners:
1. Vivekananda Virupaksha
Counsel for the respondents:
1. A Syam Sundar Reddy
The Court made the following:
2
C.R.P.No.100 of 2025
ORDER:
The revision petition is filed by the respondents Nos.2 to 6 / plaintiffs No.2 to 6 under Article 227 of Constitution of India against the order dated 20.12.2024 allowing I.A.No.222 of 2024 in O.S.No.4 of 2011, on the file of the Court of II Additional District Judge, Kurnool at Adoni, filed under Order XVIII, rule 17 C.P.C r/w Section 151 C.P.C to recall PW2 to PW4 for the purpose of cross-examination on behalf of the defendant No.40.
02. The respondents No.1 to 6 / plaintiffs filed suit for declaration of title over the schedule property by nullifying sale deeds executed by the defendant No.1 in favour of the defendants Nos.2 to 20. The defendants are contesting the suit on various grounds.
03. The case of the petitioner / defendant No.40 in I.A.No.222 of 2024 is briefly as follows:
The petitioner purchased a plot from the legal heirs of the defendant No.2 without knowing the pendency of the case as his vendors are not parties to the suit. Subsequently, the petitioner filed an application to implead him as a party to the suit. During the pendency of the said application, the plaintiffs filed an application to implead the legal representatives of the defendant No.2 along with an application to set aside the abetment order and to condone the delay in filing the application. Those applications were allowed and they were added as the defendants No.37 to 39 in the suit. The application of the petitioner herein to implead him was also allowed and he was impleaded as defendant No.40 in the suit. The defendant No.1 purchased the land in Survey Nos.449, 450 and 451 of Mandigiri Gram Panchayat measuring 20 acres and converted the same into plots vide L.P.No.137 of 1988 3 C.R.P.No.100 of 2025 and sold it to various persons. Therefore, it is necessary to recall PW2 to PW4 for the purpose of cross-examination.
04. The respondent No.4 / plaintiff No.4 filed counter and the same was adopted by the respondents No.2, 3, 5 and 6 / plaintiffs. The averments made are briefly as follows:
The PW2 and PW3 deposed the matter in relation to the suit issues and nothing left to recall them. PW4 was examined for giving evidence relating to photos downloaded from Google earth website. The same are available in public domain and anyone can access them. Prejudice would be caused, if PW2 to PW4 are recalled. The affidavit is totally silent as to the purpose and the object for which the petitioner wants to summon them. The petitioner did not file the original sale deeds bearing No.692 of 1995 which late T.Mohanraj, the defendant No.2, is alleged to have obtained from the firm M/s. Vijaya Estate Traders / defendant No.1 and the registered document No.11723 of 2021 dated 29.10.2021 allegedly said to be obtained from the legal heirs of T.Mohanraj / defendant No.2.
05. After hearing both sides, the trial Court allowed the petition observing that the petitioner / defendant No.40 came on record recently as per the orders in I.A.No.27 of 2022 and by that time, evidence of parties was completed, and there was no occasion for the petitioner to cross examine PW2 to PW4 and also that Court cannot deprive the right of cross-examination. Aggrieved by the same, this revision petition was filed.
06. The learned counsel for the revision petitioners / plaintiffs contended that there is no need to recall PW2 to PW4 as PW2 is only a commissioner who noted the features as were existing on the date of 4 C.R.P.No.100 of 2025 inspection and PW3, who is Tahsildar gave evidence basing on the evidence on record about the title of the plaintiff which is not in dispute and moreover PW3 retired from service and that PW4 who is grandson of the sole plaintiff (died) was examined to prove a fact limited to Googleearth map taken long back and by examining him now, no purpose would be served. He further submitted that the defendant No.40 is bound to continue the defence of the defendant No.2 on stepping into his shoes by transfer of interest pendente lite and he is bound by all the proceedings up to the stage of transfer of the interest and so there is no need to recall the witnesses as the defendant No.2 himself had not chosen to defend the suit. It was further argued that the power under Order XVIII, rule 17 CPC shall be sparingly used and not on the ground merely that no prejudice would be caused to the other party. It is his further contention that it is the Gram Panchayat which is the competent authority to give permission for layout and therefore, there is no need to recall PW2 to PW4 who have not deposed or have nothing to do with the layout of the subject land in the suit.
07. He placed reliance on the following Judgments:
i. The Supreme Court in Dhurandhar Prasad Singh Vs. Jai Prakash University and Ors.,1 at para No.7 held as follows:
"Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does 1 MANU/SC/0381/2001 5 C.R.P.No.100 of 2025 not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karab-ud-Din2, he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath v. Rookea Begum3, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings."
ii. The Supreme Court in Vadiraj Naggapa Vernekar (D) Through Lrs. Vs. Sharad Chand Prabhakar Gogate4, at para No.16, held as follows:
"In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the 2 [1898] 25 Cal. 179 3 [1851] 7 M.I.A 323 4 MANU/SC/0448/2009 6 C.R.P.No.100 of 2025 applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after the cross-examination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC."
iii. The erstwhile High Court of Andhra Pradesh in C.V.B. Krishna Murthy Vs. Government of Andhra Pradesh and Ors., 5 at para No.12 held as follows:
"In exercise of powers conferred by Section 217(1) and (2) of the A.P. Gram Panchayat Act, 1964, the Government of A.P. made Rules relating to the regulation and restriction of building and the use of sites for building. The said Rules issued under G.O.Ms. No. 377, Panchayat Raj (Samithi-I) Department, dated 12-10-1973 are called the A.P. Gram Panchayat Building Rules, 1972. Rule-3 of the said Rules provides that the owner of any land shall before he utilizes, sells, leases or otherwise disposes of such land or any potion thereof as sites for construction of the buildings make a layout and form a street or road and also set apart in the layout at least five per cent of the total area of the land for a playground, a park, an educational institution or for any other 5 MANU/AP/0434/2005 7 C.R.P.No.100 of 2025 public purpose as may be prescribed by the Gram Panchayat. As per Rule 5 of the Rules, any person intending to make a layout and forming a new private street or road shall send to the Gram Panchayat Office, a written application with plans and sections showing the particulars specified thereunder including the areas set apart for public purposes. Sub-rule (2) of Rule 5 specifies that the Executive Authority shall place such application before the Gram Panchayat together with his remarks within 30 days from the date of its receipt and thereafter the Gram Panchayat shall call for further particulars where necessary or forward the same to the Director of Town and Country Planning. In pursuance thereof, the Director of Town and Country Planning within 90 days shall forward his recommendations to the Gram Panchayat. Thereafter, the Gram Panchayat may within 15 days from the date of receipt of the recommendation of the Director of Town and Country Planning, sanctioned the layout having due regard to such recommendations and subject to such conditions as made deem fit or refused to sanction for reasons to be recorded in writing. On a combined reading of Rules 3 and 5, it is clear that the Gram Panchayat is the authority for sanction of layout in respect of the land situated within the jurisdiction of the concerned Gram Panchayat. Though the Executive Authority is bound to forward to the Director of Town Planning, the layout plan in pursuance of which the Director of Town Planning is required to forward his recommendations, undoubtedly the authority lies with the Gram Panchayat to sanction the layout, of course, having due regard to the recommendations of the Director of Town Planning."
08. On the other hand, the learned counsel for the respondent No.1 / petitioner / defendant No.40 contended that it is necessary to cross- examine all these witnesses as this respondent has not only to prove his case, but also to demolish the case of the plaintiffs since many transactions happened subsequent to impleading and further he has to establish that he is a bona fide purchaser. He further submitted that this 8 C.R.P.No.100 of 2025 respondent would undertake that he would complete cross-examination of the witnesses without any further delay and the cross-examination would be limited only to the extent of the case of this defendant and also to show the case pleaded by the plaintiffs as incorrect. He further submitted that he would not cross-examine the witnesses on the aspects which were already covered by the cross-examination by the other defendants.
09. It is not for mere asking sake witness would be recalled. In the case of Dhurandhar (supra), a reference was made to the decision in Moti Lal (supra) wherein it had been held that the successor in interest would be bound by the result of the litigation unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. So, just as the defendant No.1 did not contest the suit, the respondent No.1 herein need not be restrained as he filed his pleadings and has his own pleaded case. As rightly contended by the learned counsel for the respondent No.1, it is necessary to recall PW2 to PW4 for the purpose which he asked as noted above. It is only after examining the necessity, the trial Court allowed the petition. The consideration that allowing a petition would not cause prejudice is an additional factor to grant the relief and must not be the sole factor. Though Gram Panchayat is the authority to approve the layout plan, since the plaintiffs examined MRO/PW2, it cannot be said that PW2 need not be cross examined by the respondent No.1 as the cross examination of this witness need not be relating to layout plan alone and PW2 can be cross examined to test the veracity of the evidence covered by his chief-examination. No irregularities or illegality is committed by allowing the petition by the trial Court. Therefore, the order impugned in the revision petition does not call for interference.
9 C.R.P.No.100 of 202510. In the result, with above observations, the civil revision petition is dismissed. There shall be no order as to costs.
Interim orders granted earlier, if any, shall stand vacated.
Pending miscellaneous applications, if any, shall stand closed.
________________________ JUSTICE B.S.BHANUMATHI Date: 20.03.2025 NSM 10 C.R.P.No.100 of 2025 76 HON'BLE Ms. JUSTICE B.S.BHANUMATHI Civil Revision Petition No: 100 of 2025 Date: 20.03.2025 NSM