Vadiraj Naggappa Vernekar (deceased by L.Rs.) v. Sharad Chand Prabhakar Gogatel

'1 . Smt. Nagamani, (Died) as per LRs 2. Pandu @ Pandari, S/o. Kishnaji, R/o. Laxmi Gouri Shankar Colony, Jadcherla, Mahaboobnagar District.

3. Surya Prakash, S/o. Pandu @ Pandari, Aged 28 years, Occ. Veterinary Assistant, R/o. Papaireddy Guda Village, keshampet Mandal, Mahaboobnagar District.

4. Smt. Padma @ Padma Bai, Wo. Balaji, Aged about 31 years, Occ. Forest Guard, R/o. Balmoor village and Mandal, Nagarkurnool District. ...RESPONDENTS/DEFENDANTS lA NO: 1 OF 2023 Petition under Section 15'1 of 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 including O.S.No. 54 of 2010 on the file of the learned Addl. Senior Civil Judge, Mahaboobnagar, pending disposal of the above C.R,P, Counsel for the Petitioners: JILLELLA RAJESWARA RAO Counsel for the Respondents: VENKATESHWARLU GUMMADAVELLY The Court made the following: ORDER ,t/ ORDER THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO cRP.NO.2893 0F 2023

1. This Civil Revision Petition is filed aggrieved by the order dated It.O8.2023 in IA.No.151 of 2023 in OS.No.54 of 2010 passed by the Additional Senior Civil ludge at Mahabubnagar.

2. Petitioners are the plaintiffs and respondents are the defendants in OS.No.54 of 2010 on the file of Additional Senior Civil Judge, Mahabubnagar.

3. Petitioners- plaintiffs have filed 1A.No.151 of 2023 in OS.N.54 of 2010 under Order 18 Rule 17 r/w Section 151 of Civil Procedure Code (for short'CPC') to recall DW.1 (Pandri) for further cross-exa min ation.

4. It is stated in the affidavit (iA.No.151 ot 2023) that initially petitioner Nos.1 and 2 filed suit for partition and separate possession of the suit schedule property i.e., Iand admeasuring Acs.4-25 guntas in Sy.No.848/E, land admeasuring Acs.6-00 guntas in Sy.No.913/UU, total extent Acs.10-25 guntas situated at Gangapur Village, Jadcherla Mandal, Mahabubnagar District with specific boundaries. The husband of respondent No.1 is examined as DW.1 and he was cross-examined on lL-O7 -2023, he has created Ex.81 document and filed subsequenuy after the written statement with an intention to deprive the legitimate ffi.. cRP 2a93 2023 '1 share of the petitioners-plaintiffs, to ascertain certain facts about the geniuses of Ex.B1, it is just and necessary to recall DW.1 for further cross-exa m ination.

5. Respondents have flled their counter and denied the averments made in the affidavit and further contended that a reference is made in the written statement with regard to Ex.B1 and the petitioners are aware about the genuineness of the document. Petitioners' counsel has cross-examined DW.1 after two or three adjournments and they failed to mention exact reasons to recall DW.1, the absence of specific reasons for recalling the witness cannot be allowed and the applacation is filed to fill up the lacunas after the examination of DW.2 and prayed to dismiss the same-

6. The learned Trial Court after hearing the counsel on record has dismissed the application v/de IA.No.151 of 2023 (Order 18 Rule 17 of CPC) holding that the petitioners did not whisper any specific reason to recall DW.1 and dismissed the same vide order dated 11.08.2023 I which is challenged in the CRP.

7.1. Learned counsel for the petitioners- plaintiffs submits that the order of the Court below is without considering the petition contents and the alleged Ex.B1 which was created for the purpose of the suit after the death of the sole defendant (respondent No.1 herein). The learned Trial Court simply recording the representation of the junior I BRMR,J cRP 2893 2023 counsel without considering the facts of the pleas, dismissed the recall application and also failed to consider that Ex. B1 is unregistered document and there is no specific pleadings in the written statement. The reasons mentioned by the learned Trial Court are incorrect and failed to consider that Ex.B1 was brought on record subsequently and prayed to set aside the impugned order.

7.2. The present counsel came on record at the time of cross- examination of DW.2.

8. Learned counsel for the respondents-defenda nts submits that the learned Trial Court has properly appreciated the facts of the case and rightly dismissed the application filed by the petitioners-pla intiffs to recall DW.1 and the application came to be filed after the cross- examination of DW.2. to fill up the lacunas in case of the petitioners, which is not permissible under law. In support of his contention he relied on the decisions in the cases of (1) Vadiraj Naggappa Vernekar (deceased by L.Rs.) Vs. Sharad Chand Prabhakar Gogatel, (2) Shaik Gousiya Begum Vs. Shaik Hussain and Others2.

9. Heard petitioners' counsel and perused the record.

10. Now the point for consideration is : Whether the impugned order suffers from any perversity or illegality, if so, does it requires interference of this Court? 1 AlR 2oo9 sc 1604 '? 2014 (1) ALD 240 BRMR,.' cRP 2893 2023 *r

11. Petitioner Nos.1 and 2 - plaintiff Nos.1 and 2 have filed suit in OS.No.54 of 2010 before Senior Civil Judge at Mahabubnagar against the respondent No.1 who is the sole defendant seeking partition for allotment of 2/3'd share to the petitioner Nos.1 and 2 - plaintiff Nos. 1 and 2 in respect of the suit schedule property which is shown in Para No.4 with specific boundaries and the defense on the sole respondent No.1 - defendant is that Krishnaji allotted the. suit land to the defendant, prior to 1979 itself, and he treated her as his own daughter and Krishnaji thought that petitioner Nos.1 and 2 - plaintiffs may create problem to respondent No.1- defendant in future thinking so, he requested the plaintiffs to execute a deed declaring that they will not claim the land in future. Accordingly, plaintiffs executed a settlement cum relinquishment deed in favour of the defendant on 14.05.1978 through which the plaintiffs relinquished all the rights and claims over the suit land in favour of the defendant. During pendency of the suit, petitioner No.2 - plaintiff No.2 died and her LR's were brought on record as pet,tioner Nos.3 to 6 - plaintiff Nos.3 to 6. Respondent No.1 - defendant also died during pendency of the suit thereby, her LR's were brought on record as respondent Nos.2 to 4 and they filed additional written statement.

12. Evidence of the plaintiffs is concluded and the husband of respondent No.1 is examined as DW.1 and got marked Ex.B1- relinquishmt-'nt deed dated 14.05.1978. DW.l was cross-examined by T I I I I n sl7 BRMR,J cRP 2a93 2023 the petitioners' counsel (Sri Narsing Rao), which goes to show that there is some portion of cross-exa mination with regard to Ex.B1 that "one day or two days prior to our marriage, Ex.B1 was executed, I know the contents of Ex.81. In the year L994, we submitted Ex.B1 before the concerned Revenue Authorities for getting patta in the name of my wife".

13. Learned counsel for the petitioners- pla intiffs coritended that he came on record at the time of cross-exa m ination of DW.2 and after going through the cross-exa mination of DW.2, he advised his client to file an application to recall DW.1 to cross-examine him about the genuineness of Ex.81.

14. The affidavit of petitioner No.1 goes to show that Ex.B1 is brought into existence to deprive the legitimate share of the petitioners- pla intiFfs in the suit property and to ascertain the genuineness of the said facts, it is just and necessary to recall the witness. On perusal of cross-exa m ination of DW.1, there is nothing on record with regard to the genuineness of Ex.81.

15. The learned Trial Court observed that DW.1 was cross-examined regarding Ex. 81 and there is no merit in recalling of a witness basing on contradictory statement made by subsequent witness, the petitioners did not whisper any other specific reasons for recall of DW.1. The learned Trial Court has lost sight of the reason mentioned 6l) BRMR,.,I cRP_2a93_2023 by the petitioners- plaintiffs in the affidavit with regard to genuineness of Ex.B1 and has also not gone through the cross-exa mination of DW.1.

16.1. In Vadiraj Naggappa's casel, the Supreme Court observed that "witness cannot be recalled to fill up the lacunae in the evidence and if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within thE discretion of the Trial Court to permit recall of such as witness for re-examination-in- chief with permission to the defendants to cross-examine the witness thereafter".

17. Shaik Gousiya Begum's case2 is not applicable to the case on hand as the plaintiffs therein have filed application to reopen the case and for issuance of summons at the stage of the arguments'

18. petiti o ne rs- Pl a i nti ff s Coming to the case on hand, the recall application is filed by the after the cross-exa m ination of DW'2 and the by the petitioners-pla intiffs in the affidavit is reasons mentioned limited to the extent of ascertaining the facts about genuineness of Ex.B1. This Court is of the view that Ex'B1 is the document which has a bearing on the decision of the suit' Though the petitioners have filed application after the cross-examination of DW'2' the reasons mentioned by them are bonafide and deserves consideration and the witness i.e., DW.1 is recalled only to the extent of cross-examination /r/ n -t I 717 BRI,IR,.I cRP 2893 2023 with regard to genuineness of Ex.B1 subject to payment of cost of Rs.5,000/- payable to the witness.

19. This Court is of the view that the reasons assigned by the learned Trial Colirt in dismissing the application in IA.No.151 of 2023 dated 11.08.2023 requires interference of thls Court as it has not exercised the discretion to recall the witness (DW.1), and the order is 1 liable to be set aside and is set aside.

20. In the result, CRP.No.2893 of 2023 is allowed and the order passed in IA.No.151 of 2O23, dated 11.08.2023 is set aside. DW.1 is recalled subject to payment of costs of Rs.5,000/- payable to the witness at the time of cross-exa mination. Interim orders, if any, stands vacated. Miscellaneous application/s if any, stands closed. There shall be no order as to costs. SD/. T.SRINIVASA REDDY ASSISTANT REGISTRAR 6 ,TRUE COPY// SECTION OFFICER To,

1. The Addl, Senior Civil Judge, Mahaboobnagar. 2. One CC to SRI JILLELLA RAJESWARA RAO Advocate IOPUCI 3. One CC to SRI VENKATESHWARLU GUMMADAVELLY Advocate tOpUCl 4. Two CD Copies GR/PSI- W N r) ,z(:: -='r l or( rntr oIA ( 2 1 It 0 u ztE cr) l1 k HIGH COURT DATED:2410912025 ORDER CRP.No.2893 of 2023 ALLOWING THE CRP 6 ,r, ''1,\ \