IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE NINETEENTH DAY OF APRIL TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.6134 of 2010 & 124 of 2011 Between: M/s. Pioneer Farms Ltd. .. Petitioner AND Muthyala Mayur Naidu & 4 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.6134 of 2010 & 124 of 2011 COMMON ORDER: Both the Civil Revision Petitions are directed against the common order passed in I.A.Nos.433 and 434 of 2010 in O.S.No.278 of 2002, on the file of the Principal Junior Civil Judge’s Court, Bhongir, dated 22.10.2010, and are, hence, being disposed of by this common order. 2. Respondents 1 to 3 herein are defendants 3 to 5 in O.S.No.278 of 2002 and in the suit for specific performance of contract filed by the revision petitioner, respondents 1 to 3 herein were not the original defendants, but were subsequently impleaded. They sought for recalling of P.Ws.1 to 5 for cross-examination by them as some material questions were stated to have not been put to P.Ws.1 to 5. 3. The revision petitioner herein/the plaintiff opposed the request contending that the first defendant filed the written statement in detail and cross-examination of P.Ws.1 to 5 was conducted on her behalf in detail. The respondents 1 to 3 herein had, in fact, filed a written statement in collusion with the first defendant, their mother, and after their impleadment on 02.07.2007 and their filing of written statement on 12.07.2007, they did not take any steps for more than three years. Hence, the revision petitioner/plaintiff desired that the belated petitions be dismissed. 4. The trial Court considered the rival contentions and passed the impugned order noting that respondents 1 to 3 herein also are the legal heirs of Aravind Naidu, the husband of the first defendant and they did not plead any prejudice which is likely to be caused to them if P.Ws.1 to 5 are not recalled. However, as respondents 1 to 3 herein were impleaded after the cross-examination of P.Ws.1 to 5 and as they are the legal heirs of Aravind Naidu, the trial Court felt that it is just to give an opportunity to them to cross-examine P.Ws.1 to 5 which causes no prejudice to the revision petitioner. 5. The revision petitioner challenges the orders allowing the petitions for reopening the evidence and recalling P.Ws.1 to 5 contending that it will be very difficult to secure the presence of the independent witnesses, P.Ws.3 to 5, after a lapse of about five years. No prejudice would have been caused for respondents 1 to 3 herein even if the witnesses are not recalled as the same counsel appears for all the defendants and had already cross-examined the witnesses elaborately. The attempt is only to fill up the gaps in the cross-examination and, hence, the revision petitioner desired the impugned order to be reversed. 6. Sri Ch. Srinivas, learned counsel for the revision petitioner and Sri K. Nageswara Reddy, learned counsel for respondents 1 to 4 are heard and the 5th respondent is stated to be not a necessary party to the revision. 7. The point for consideration is whether respondents 1 to 3 herein should be given an opportunity to recall and cross-examine P.Ws.1 to 5. 8. The fact that defendants 3 to 5 were not original parties to the suit and that P.Ws.1 to 5 were examined and cross-examined much prior to their impeladment in the suit is not in dispute. That the respondents 1 to 3 herein are the legal representatives of the deceased Aravind Naidu, the husband of the first defendant, is also not in dispute. The fact that they filed a separate written statement and are contesting the suit on their own is also not in dispute. The contentions of the first defendant and defendants 3 to 5 in their separate written statement were not stated to be identical. Though the learned counsel before the trial Court appearing for all the defendants may be one and the same, the probability of the necessity for the learned counsel to put forth the specific defence of defendants 3 to 5 to P.Ws.1 to 5 and confront them with the necessary details cannot be considered non-existent. The request ex facie to recall P.Ws.1 to 5, under the circumstances, cannot be considered unjust or illegal. 9. However, the fact remains that defendants 3 to 5 were impeladed on 02.07.2007, filed their written statement on 12.07.2007, but filed the present applications only on 16.06.2010. The delay of three years and the progress made in the proceedings of the suit in the meanwhile undoubtedly cause inconvenience to the plaintiff and the complaint that it becomes difficult for the plaintiff to secure the presence of the independent witnesses, P.Ws.3 to 5, at this distance of time is not unreal or unreasonable. Therefore, while permitting defendants 3 to 5 to have P.Ws.1 to 5 recalled, the burden of taking steps to secure the presence of P.Ws.3 to 5 before the Court for purposes of further cross-examination by them and bearing all the expenses of P.Ws.1 to 5 as per rules after attendance before the Court should be placed on defendants 3 to 5 and if they fail to secure the presence of P.Ws.3 to 5 before the Court by taking recourse to the procedure provided by law, the same cannot be considered as an adverse circumstance against the plaintiff in considering and appreciating the evidence of P.Ws.3 to 5 already recorded by the Court for determination of the questions in issue in the suit on merits. The impugned order has to be modified, accordingly, subject to the above observations, but not interfered with in appeal. 10. In the result, while confirming the impugned orders in I.A.Nos.433 and 434 of 2010 in O.S.No.278 of 2002, on the file of the Principal Junior Civil Judge’s Court, Bhongir, dated 22.10.2010, it is directed that respondents 1 to 3 herein shall be responsible for taking steps for securing the presence of P.Ws.3 to 5 before the Court for purposes of recalling them for further cross-examination by respondents 1 to 3 herein and that respondents 1 to 3 herein shall bear the witness batta and expenses of P.Ws.1 to 5 on the dates of their being called to be present before the trial Court for purposes of their being recalled and cross-examined. 11. The Civil Revision Petitions are ordered, accordingly, subject to the observations made in this order. No costs. _____________________ G. BHAVANI PRASAD, J Date: 19th April, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION Nos.6134 of 2010 & 124 of 2011 Date: 19th April, 2011 KL