The High Court · 2025

W3 Hospitalitv Services Private Limited, represented by its Managing Director Mr. P. Pramod Kumar, having its registered office at Plot No.3, D No 8-2- 293l82lFlN3, Road No 1, Film Nagar, Jubilee Hitts, Hyderabad - 500 096. ...RespondenUs IA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in O,S.No.283 of 2O20, on the file of the Hon'ble lV Senior Civil Judge, City Civil Court, Hyderabad, pending disposal of the above civil revision petition. Counsel for the Petitioner: Sri T. Raghu Ram Counsel for the Respondent: Sri G. Vidya Sagar, learned senior counsel representing Sri P. Shashidhar Reddy The Court made the following: COMMON ORDER v, ,// c ,., .' HoN'BLI' SRI JUSTICE LAXMI NARAYANA ALISHEI"TY CIVIL REVISION PETITION Nos.28l5 and 2858 of 2024 COMMON ORDER: Civil Revision Petition No.2858 of 2024 is filed challenging the order, dated 22.03.2024, passed in I.A.No.392 of 2024 in O.S.No.283 of 2020 by the tV Senior Civil Judge, City Civil Courr at l{yderabad.

2. Civil Revision Petition No.28l5 ol 2024 is filed challenging the order dated 22.03.2024 passed in LA.No.393 ol 2024 in O.S.No.283 ol 2020 b)- the IV Senior Civil Judge, City Civil Court at Hyderabad.

3. Sincc the issue involved in both the Civil Revision Petitions is interconnecled and the result is interdependent, both the Revision Petitions are heard together and arc being disposed ol by cornlnon ordcr.

4. T'he pctitioner hcrcin is the plaintiff and the respondent hercin is the delendant in thc suit. For convenience, hereinafter, the parlies are referred to as they arc arrayed in the suit.

5. Heard Sri T Raghu Ram, learned counsel for the petitioner and Sri G.Vidya Sagar, leamed senior counsel appearing fbr Sri P.Shashidhar Reddy, learned counsel on record for the respondent. I I l I 2 LN{ J CRP.Nos.2875 & 28sB of 2024

6. The briel lacts of the case, required lor disposal of the present Revision Petitions, are that ptaintiff filed the suit-OS.No.283 of 2023 against the del-endant lor eviction, recovery .. ol an'ears of rent, inj unction, mesnc profits and damages in respect ol the suit schedule propefty; that rvirile the said suit was pending adjudication, defendant filed apptications, vide IA.No.392 and 393 of 2023. to reopen the plaintifls si<le cr idcnce and to recall PWI for cross examination

7. In thc affidavits, filed in supporl ol the said applications, the defendant averred that the after completion ol cross-examination of PWl, the GHNIC officials issued a notice to the delendant and the same was challenged by the defendant belore the Hish Court vide W.P.Nos.4l 135 and 40729 of 2022; rhat prior to lrling olthe said Writ Petitions, the plaintilf filed W.P.No. 18529 ol 2()2 I before the High Court; and that all the three Writ Petitions were disposed of on

11.11.2022; that alter disposal of the said Writ Petitions, the plaintiff, hand in glove uith the GHMC officials, demolished the suit schedule propefty, in the absence of the defendant, despite the orders of the High Coun not to demolish the structures and thereb,r. changed the natufu ofthe suit schedule property. t I 3 LNA, ) CRP.Nos.2875 & 2858 of 2024

8. It was further averred that PWI has to be confronted with the afore lacts which are subsequent developments after completion ol cross-examination of PWI; that cross-exam ination of PWI was done at his residence and that due to non-availability olthe Court records, certain important questions were not posed to the P.W- I by then counsel for defendant. Hence, it is just and essential to reopen the plaintilfs side evidence and to recall Pw1 lor further c ross- examination of P.W- I fbr lair and iust adjudication of the suit.

9. A counter was filed by the plaintif'f denying the averments rnade in the application and it is inter ulia contended that Order XVIII Rule l7 ofCIPC can be invoked to enable the Court to get clarification of any issue/doubt with regard to the cvidence led by the parties to the suit by recalling any witness so that the Court itsell can put questions and elicit answers. lt was lurther averred that affldavit in lieu of chief I examination of P.W-l was filed on 03.08.2021 and the plaintifls side evidence was closed by 26.08.2021 and the case was posted to

03.09.2021 for dclendants' side evidence, however, for more than two years the defendant has delayed to bring his evidence on record till

08.1 1.2023 and in the inter-regnum, the defendant's side evidence was eschewed on 10. I 1.2021 that on 22.1 1.2021, time was extended to \ I 4 LNA, I CRP.Nos.2815 & 2858 of 2024 submit argunrents; that on 26.1 1.2021,1A was filed to set aside order dated 10. ll.20ll and the same was allowed on 17.12.202 l;that later, tirne was extended for cross-examination. Finally, after several adjournments DW I was cross examined on 03.10.2023 and the case was posted lor l'urther evidence to 13.10.2023. On t3.10.2023, at request ol clef'endant, the case was adjoumed to l!). I 0.2023 and further, to 08.11.2023 on costs of Rs.200/-. bur. after rhree adjournments, the defcndant reported no lurther c-r,idence. The petitioner has filed the present applications only to protract the case proceedings and the same is contrary to the orders dated 02.11.2021 passed by the High Court in CRP.No. 1355 ol20ll, whcreby rhe trial Court was requested to hear and dispose of the suit expcditiously, not later than three rnonths from the date of receipt ofcopy ofthat order.

10. It was lufther averred that the trial Court vide impugned orders dated 22.03.2024 allowed the two applications by observing rhat the procedure adopted by the GHMC olficials while demolishing the alleged illegal constructions and other related facts, which came into existence strbsequent to the recording of the depositions, have a bearing on the decision and also will assist the Courl in rendering justice and thus, gave an opporlunity to the defendant permitting him I I / I I I I I ; I { 5 LNA, J CRP.Nos.2815 & 2858 of 2024 to recall P.W- I for furlher cross-examination by reopening the plaintifls side evidence. Aggrieved by the said orders, the present Revision Petitions are filed by the plaintiffs. I l. Learned counsel lor the petitioner/plaintiff submitted that rhe trial Court failed to exercise its inherent powers vested with it under Section 151 CPC, which could be exercised to reopen evidence for further cross-examination only lor the purpose other than securing clarification and thus, erroneously passed the impugned orders. He further submitted that the trial Court, in the light of the fact that the leased property is demolished by GHMC, ought to have held that the suit itself has become infiuctuous, however, it ened in passing the impugned orders, which are contrary to law and not sustainable and therefore, he prayed to allow the Revision petitions.

12. In support of his contentions, learned counsel for the petitioner relied upon the judgment of rhe Hon'ble Apex Courl in K.K. Velusamy Vs. N.Palanisamy' . In the said case, the Hon,ble Apex Court hetd that power under Order XVIII Rule 17 CpC is only for clarification i.e., to enable the Court to clarify any issue or doubt it may have in regard to evidence led by parties by recalling any witness '(2011) 1l scc27s I 6 LNA, J CRP.Nos.2815 & 2858 of 2024 so that Court itself can put questions to such rvitness and elicit answers, horvever, this power is not intended to be used to fill up omissions in evidence of a witness who has already been examined.

13. On the othcr hand, learned senior counsel lor respondent submitted tl-rrrt the trial Court, taking into accoutlt the overall facts and circumstances ol the case, pafticularly,, the lact that. the issues in respect of illegal constructions, demolition of structures in the suit schedule pr('perty by the GHMC, etc., observed that since the said issues have zr bearing on the result ol the suit and hencc, tl-re trial Court has rightly perrnitted the defendant to recall P.W- l fbr further cross- examination. [-earned seniot counsel fur1her contended that the plaintiff is also seeking mesne profits and therefore, i1 is imperative that the suhsequent developments have to be conlronted to P.W-l and hence, the impugned orders passed by the trial Courl are based on sound and p:oper reasons, which does not warrant an! interlerence by this Cour-t and accordingly, the Revision Petitions are liable to be dismissed

14. It is tne spccific case of the defendant that certain subsequent developmenr.s have taken place after cross-examination of P.W-1, i.e., i t ./ 1 LNA. ] CRP.Nos.2815 & 2858 ol 2024 the plaintiff, in collusion with GHMC officials, has demolished the suit schedule properly, thereby changing the nature of the suit schedule property, and as such, it is essential that the said facts be confionted to P.W- I during his cross-examination.

15. [n this regard, it is appropriate to reler to Sections l0l and 103 of the Indian Evidence Act, 1872, the essence and core meaning of all these Sections is that when a person wishes the Court to believe the existencc of any tact(s) and desires that the Cour-t gives judgment dependant on existence ol the said facts, the burden ol proof as to existence ofthat particular fact lies on that person.

16. As per Section 106 CPC, when any lact is especially in the I knowledge of any person, the burdc'n ol-proving that {ict is upon hirn

17. Adverting the aforesaid sections to thc case on hand, it is to be seen that in thc present case, as the dcfendant is contcnding that the plaintiff, in collusion with the GHMC olTicials, has demolished the suit schedule property, thereby changing the nature of the suit schedule property. the burden of prool lies on him as to the existence of the said fbct(s) by adducing evidence on his behalL Here,'adducing evidence on his behalf would necessarily mean to examine any witness(es) on "l ) --t 8 LNA, J CRP.Nos.2815 & 2858 of 2024 his behall to prove the existence of any lact. and not by CTOSS. examination ol u,itness(es) of the rival party

18. In other words, the burden is on the def'endant to prove the existence ot'the fhcts contended by him before the Court, which can be done only by leading evidence on his behalf and placing relevant material on lecord in support thereof, however, the saicl fact cannot be proved b1' u.'.rv ol cross-exam ination of P.W- l. 19 ln l'odirfi Naggappt Vernekar (deceased h' LRs) t,. Sharad Chand Probhtkar Gogatd, the Hon'ble Supreme Courr held as under: " In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed bv the parties for recall of witnesses, the main purpose of the said Rule is to enable the court, while trying a suit. to clariJv anl; cloubts which it may have with regard to the evidence led by the parties. The said provisions are not intentled to be used to f ll up omissions in the evidence of a witness who has alread.v been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced bv recallirry the v)itness in question, was available at the time when rhe ffidavit of evidence of the witness was prepared and ffirmed. lt is not as d certain new facts have been discovered subsequently which were not u,ithin the knou lcdge of the applicant when the affidavit evidrrnce was 'o,T 2009 sc 1614 I I 9 LNA, ] CRP.Nos.2815 & 2858 of 2024 prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the /lat in question and, therefore, had knowledge o.[ all the lransactions involving such acquisition. tt is obvious that only after the cross-examinat ion of the witness that certdin lapses in his evidence came io be noticed which impetled the appellant to file the application under Order tB Rute t7 CPC. Such a course of action which arises out of the fact siluation in this case, does not make out a case for recall of o witness after his examination has been completed. The power under the provisions of Order lB Rule l7 CpC is to be sparingll, exercised and in appropriote cases and not as a general rule merely on the ground lhat his recall and re- examination would not cause any prejudice to the parties. That is not the scheme or intention of Order I B Rule I 7 CpC. 17. It is now well settled that the power to recall any wilness under Order lB Rule l7 (..PC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicoted hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has alread;; been rec.orcled but lo clear any ambiguity thal may have arisen during the course of his examination. Of course, if the evidence on re- examination of a witness has a bearing on lhe ultimate decision of the suit, it is alwoys within the discretion of the trial court to permit recall of such a witness for re- examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to I a I 10 LNA, ) CRP.Nos.2815 & 2858 of 2024 indicate that such is the situation in the present ca.se. Some of tl'te princ'iples akin to Order 17 CPC may be applied when a partv makes an application under the provisions of Order l8 Rule 17 CPC, but it is ultimately within the court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out."

20. Thus, from the above judgment, it is clear that power under the provisions o'- Order l8 Rule 1 7 CPC is to be sparingly exercised by the Courls in appropriate cases and not as a general rule, merely on the ground that his rccall and re-examination would not cause any prejudice to the parties. Such power is to be invoked not ro fill up the lacunae in the evidence of the witness which has alreadv been recorded. but to clear any ambiguity that may have arisen during the course of his examination.

21. In the instant case, it is the case of the defendant that since the cross-exarrir ation of P.W- 1 was done at his residence and that, due to I , non-availability of court records, certain important questions were not posed to hirrr and as such, it is necessary to recall p.W- 1 for further cross-exarnr n atlon

22. Perusal ot'record reveals that the plaintilf has filed his affidavit Iieu ol chief:examination on 03.08.202l and the plaintifls side 11 LNA, ] CRP.Nos.2815 & 2858 of 2024 evidence was closed on 26.08.2021. However, the present application seeking to recall P.W- I for further cross-examination was filed on

08.11.2023, i.e., after a period oftwo years lrom the date olclosure of evidence on plaintiff s side and after the suit had been adjoumed several times at the instance of the delendant and finally, the def'endant reported no further evidence. Thus, all these lacts clearly shor.v that the delendant is trying to fill up the lacuna by way of cross-examination ol P.W-1, but not to clear any ambiguity that may have arisen during the course ol his exarnination, which in the light of the aforesaid judgment of the Hon'ble Apex Court cannot be permitted.

23. Further, it is pertinent to note that the lacts which the dclendant is intending to prove by way of confrontation to PW-l are admittedly the subsequent developments after filing ol the suit, that too, after completion of cross-exam ination ol P. W- I and therefbre, therc may not be any pleadings to that effect in the affidavits filed by either side. Hence, these aspects cannot be proved by confrontation olthe same to P.W- I through his further cross-examination.

24. In the light of the foregoing discussion, in the considered opinion of this Court, these aspects were not properly construed by the trial Court while allowing the applications by the impugned orders and I I 12 LNA, J CRP.Nos.2815 & 2858 of 2024 hence, the inrpugned orders are unsustainable and are riable to be set aside.

25. Accoldingly, these Civil Revision petitions are allowed and the orders, dated 22.03.2024, passed in I.A.No.392 and j93 of 2024 in O.S.No.283 <tf 2020 by the IV Senior Civil Judge, City Civil Court, Hyderabad, are hereby set aside. Perrrling miscellaneous applications, if any, shall stand closed.

26. No costs. //TRUE COPY' Sd/- AV.S. PRASAD EPUTY REG IiECTION OFFICER -l To, 1 . The lV Senior Civit Judge, City Civil Court, Hydera 2. One CC kr Sri T. Raghu Ram, Advocate [OpUC] a. One CC to Srr P. Shashidhar Reddy, Advocate [O PUCI .11,1i -- /p-' 4. Two CD Copies I HIGH COUIRT DATED:0910612025 I COMMON ORDER CRP.Nos.2815 and 2858 of 2024 ' 1/( -) o 1B JUN 26 6( z o ALLOWING THESE CIVIL REVISION PETITIONS 6 1 1D t