The High Court · 2023

2. Basant Kumar.Soni, S/o. Shri Ramesh Chandra Soni Age 41 years Occ: Advocate, Rlo 15-2-204, Maharajgunj, Hyderabad.

3. Shri Satyanarayan Soni (dead as per LR), (Died) All the above are R/o. H.No. '15-2-147 to 149, Maharajgunj, Hyderabad.

4. Rameshwarlal Kahwa, S/o. Sri Ramapal Kahwa, Aged 40 years, Occ. Business.

5. D Raju, S/o. Shri D Vital 7 Aged 50 years, Occ. Business. 6. Narayandas Khandalwal, S/o. Shri Jagannath Khandelwal, Aged 50 years, Occ. Business.

7. Rajendra Rao Patil Occ. Business. S/o. Shri Shankar Rao Patil Aged 45 years,

8.. Satyanarayan Vyas, S/o. Multanji Vyas, Aged 51 years, Occ. Business. 9. Kamal Kishore Jhawar, S/o. Shri Sampatlal Jhawar, Aged 40 years, Occ. Business: All the above are R/o. H. No. 15-2-147 to 149, Maharajgunj, Hyderabad.

10. Mukunddas Soni, S/o Occ: Business. Purushothamdas Soni aged about 53 years,

11.Anita lioni, Wo. Mukunddas Soni, aged about 50 years' Occ: Business' Resp lrlo. 10 and 11 are R/o. H. No.4-7-290, Esamia Bazar' Hyderabad ... ResPondents/Defendants The Rr:spondents No. 'l to 9 are not necessary parties to the present revision. IAN :1O 2.024 Petition under section 151 CPC praying that in the circumstances stated in theaffidavitfiledinsupportofthepetition,theHighCou(maybepleasedtostay all further sui,: o.s No. 15 of 2013 by the learned lx Addl. chief Judge, ccc' Hyderabad'pendingdisposalofthepresentRevisionintheinterestofjusticeand pass. Counsel for the Petitioner(s): Counsel for the Respondent Nos' 1-9: - Counsel for the ResPon dent No.10: Sri Ashish Kate, Counsel representi Sri. Bankatlal Mandhani for Ms. Maniari S.Ganu. The Court made the following: ORDER -) THE HONOURABLE SMT. JUSTICE RENUKA YARA CIVI REVISIO PETITIO No.l109 2024 ORDER: Heard Sri Bankatlal Mandhani, learned counsel fbr the reviston petitioner and Sri Ashish Kale, learned counsel for representing Ms. Manjari S. Ganu, learned counsel for respondent No.10' Perused the entire record.

2. This Civil Revision Petition is directed against the order dated

06.1 1 .2023 in I.A.No.l80l of 2023 in o.S.No. t 5 0f 2ol3 0n the file of the IX Additional Chief Judge, City Civil Court, Hyderabad, wherein a petition filed under Order XVIII Rule l7 read with Section 151 CPC, to recall the witness D.W.2 fbr cross-examination by the revision petitioner, has been disrnissed.

3. The brief facts of the case are that respondent Nos'l and 2 herein have filed suit vide O.S.No.l5 of 2013 for declaration and perpetual injunction against respondent Nos.3 to 11 and the revision petitioner herein. The said suit is at the stage of cross-examination of D'W'2' D'W'2 has been cross-examined by ptaintiff No.2/respondent No.2 herein and the cross-examination concluded. Then, the revision petitioner herein/ RY,J cRP_l109]024 respondent No.10 in the suit had to cross-exatnine the witness D'w'2' However, the cross-examination of D.w.2 by the revision petitioner u,as closed without giving an opportunity on I 1.09'2023 as the learned counsel for the revision petitioner could not attend the Court in order to attend his medical exlmination. Therefore, the petition under revision was filed to recall the evidence of D.W.2 tbr cross-examinat'ion by the revision petitioner In tht: grounds of revision, it is pleaded that the trial court erred in 4. holding tha[ respondent No.2/plaintiff No.2 would protect the interest of the revision petitioner without any reason' that reasonable opportunity was not given by failing to consider the personal diffictrlty of the learned counsel for the revision petitioner for failure to cross examine DW2 leading to miscarriage ofjustice. It is pleaded that the order passed is perverse and untenable and therefore, liable to be set aside'

5. During arguments, learned counsel tbr the revision petitioner submitted that when the matter was posted for cross-examination' he could not attend the court, as he had to visit a hospital for his medical examination and the cross-exarnination of D.w.2 was closed u'ithout giving an oPPortunitY. 2 RY.J cRP_lr09 7024 In that context, the contention of the leamed counsel for respondent 6. No.l0 herein is that the revision petitioner is father of respondent No.2/plaintiff No.2 who is Secretary of respondent No.1/plaintiff No'1- Charitable Trust. It is submitted that there is no conflict of interest between the revision petitioner and respondent No.2 and that respondent No'2 has already cross-examined D.W.2 at length running into nearly 50 pages, which covered questions about the alleged will Deed dated 20-12'1994' The I.A. under revision was filed ostensibly for the purpose of cross- examination on the disputed Will Deed, dated 20'12'1994 and about the said document respondent No.2 has already cross-examined at length' It is also submitted that t.A. under revision and the present civil Revision Petition are tiled only to harass and cause inconvenience to the witness D.W.2 by subjecting him to another round of cross-examination on the same'subject matter. [n response, learned counsel for the revision petitioner submitted that

7. no assumption can be made about the cross-examination by respondent No.2 being sufficient to protect the interest of the revision petitioner' It is argued that fair opporlunity should be given to the revision petitioner to cross-examine D.W.2. Further, reference is made to affidavit wherein the 3 RY,J cRP Ll09 2024 purpose for recalling was to question about the alleged Will Deed on merits

8. A pt:rusal of plaint in O.S.No.l5 of 2013, more particularly, the prayer sho'ws that the suit is filed seeking relief against defendant Nos.2 to 7 only. No relief is sought against defendant Nos.8, 9 and 10. It is also a point to bo noted that defendant No.l0/revision petitioner herein filed written statement through his counsel admitting the entire suit claim referring to each paragraph from Paragraph No. I to Paragraph No. 13 of the plaint. Thc,ugh no claim is made against revision petitioner, in the f,trst paragraph ,tf the written statement, he accepted the suit claim and pleaded that the suit claim of the plaintiff No.l/respondent No.l 'frust deserves to be accepte,l and in the last paragraph, prayed that the suit be dismissed against hinL as infructuous.

9. Whenever one of the defendant is sailing with the plaintiffTplaintil'f's, the sailing defendant has to first cross examine the witness of the contesting,lefendant.

10. When revision petitioner is sailing with plaintiff No.l/respondent No.l Trusl and its Secretary plaintiff No.2/respondent No.2 and the 4 RY,J cRP_l tog 2024 respondent No.2 has cross examined the witness DW2 about the alleged Will Deed of the year lgg4, there can be no new points to be elicited' Further, when there is no interest to revision petitioner and no relief is sought against him, there is no purpose in recalling DW2 for cross examination by the revision petitioner' In the instant case, before plaintiff No.2/Party-in-person cross ll. examined DW2, revision petitioner ought to have cross examined DW2 and only after revision petitioner cross examined Dw2, the plaintiff No'2- Party-in-person ought to have cross examined Dw2. When revision petitioner did not take any interest in cross examining DW2 before examination by plaintiff No.2, at this juncture, filing the present petition to reopen the matter for cross examination of DW2 by the revision petitioner herein is not tenable and such a relief cannot be granted'

12. In similar circumstances, the l{igh Court of Andhra Pradesh at Amaravati in case between Patna Venkata Sreeramulu v' Dalli Appalareddy and othersr has hetd as below: "l2.Viewedfrornthisangle.inthepresentcase'DW-landD-13 would go together as against the case of the plaintiffs' As such' if ' 202ZSCC OnLine AP 3200 5 RY,J cRP I 109 2024 plaintilfs are directed to cross examine DW-l belore D-13, there is likel:hood of D-13 eliciting evidence frorn Dw-l dcstrolrine rhc cross; examination conducted by the plaintifts or he ma). elicit evidr:nce in f'avour of DWI and /or D-13 because the rvrittc,n statement filed by DW-l is already in his (D-13) favour. r'hen. the very purpose of cross examination rvould be de{'eated. without anal'vzing this possibility, the trial court. on a curser reading of Section 138 of the Act, was under the misunderstanding that it is only the opposite party, to cross examine first and directcri thc plaintifls to cross examine Dw-l and, therefore, it has committed error in directing the plaintiffs to first cross examine Dw-1. If at all. D-13 intends to cross examine D-l/Dw-1. D-13 should first cross exanrine and later the plaintiffs should cross examinc, but not aficr the <:ross examination by the plaintiffs. If D-13 reports no cross exanrination of DW-1, then only, the plaintiffs have to cross examine DW-1."

13. Irrespective of the fact that there are ceftain errcrs in the order passed by the leamed Trial Court mistakenly referring to the petition oS olc' filed fbr citlling for documents from the Sub-Registrar. the order contains the rcasoning given for denying the relief of recalling DW2 i.e. cross examination ol'DW2 by defendant No.l0 i.e. revision petitioner herein. Further, this court is of the opinion that when plaintiff No.2-party-in- person who is son of revision petitioner has already cross examined DW2 on the alleged Will Deed at length, when there is no mention as to what 6 RY,J cRP_l109_2024 question was not posed by plaintiff No.2-Party-in-person with respect to Will Deed, permission cannot be granted to recall DW2 for cross examination by defendant No.1O/revision petitioner herein' As such' there are no merits in the Revision Petition and the same is liable to be dismissed t4 Accordingly, the Civil Revision Petition is dismissed' No costs' As a sequel thereto, miscellaneods petitions, if any' pending in this petition shall stand closed. //TRUE COPYII SD/. K. AMMAJI DEPUTY REGISTRAR 6 SECTION OFFICER To, ^ \ f\.r).- V

1. The lX Additional Chief Judge, City Civil Court, Hyd 2. One CC to Sri. Bankatlal Mandhani, Advocate [OPU 3. One CC to Ms. Manjari S.Ganu, Advocate [OPUC] 4. Two CD Copies. erabad cI a 7 , I x I 1 i t { i i ! I : I I HIGH COURT DATED i2311012025 } I I l t oR THE S (_) * 1 7 ti:B 20/6 * ORDER CRP.N o.tr109 of 2024 )l DISMISSING OF THE CIUL REVISION PETITION. L J \ J,