HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.471 OF 2011 DATE:04-03-2011 BETWEEN M.V.Nageswara Prasad and another …Petitioners AND G.Anand and others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.471 OF 2011 ORDER: This revision under Article 227 of Constitution of India is directed by the plaintiffs against the orders of VII Additional District and Sessions Judge (Fast Track Court), Vijayawada in allowing I.A.No.285 of 2008 in O.S.No.65 of 2004, dated 14.12.2010 filed to recall P.W.1 for the purpose of cross-examination on behalf of the first defendant. Contesting the above suit filed by the plaintiffs-petitioners herein, the first respondent-first defendant filed written statement along with counter-claim and also filed I.A.No.241 of 2007 to reject the plaint. On dismissal of the same, he carried the matter in revision in C.R.P.No.5236 of 2007, and pending the revision, the plaintiffs gave an undertaking that they will not proceed with the trial in the suit, which was recorded by this Court on 7.12.2007 and that the said information of undertaking was filed before the lower Court on 10.12.2007 by way of a memo and in spite of the same, the affidavit was filed in lieu of chief-examination of first plaintiff as P.W.1 and that the Court below closed the cross-examination of P.W.1. In the counter affidavit filed by the plaintiffs it is stated that the conduct of the first defendant-first respondent herein is not appreciable from the beginning since the matter was being adjourned at his request from 31.10.2007 onwards till the conditional order was passed on 12.11.2007 to the effect that if the first defendant-first respondent herein and his wife (second defendant) fail to proceed with the cross-examination of P.W.1 their right for cross-examination will be forfeited. On 16.11.2007 cross- examination of P.W.1 was conducted on behalf of 3rd defendant alone and that the counsel for defendants 1 and 2 sought time for their cross- examination and that the matter was adjourned on imposition of costs. Even on the subsequent date, as the defendants 1 and 2 failed to proceed with the cross-examination of P.W.1, their right of cross- examination was forfeited by closing the evidence of P.W.1. On dismissal of the above revision by this Court on 10.4.2008, the first defendant-first respondent herein filed the impugned I.A. to permit him to proceed with the cross-examination of P.W.1. The lower Court recorded that there was no bona fide on the part of the first defendant-first respondent herein in pursuing the matter but however, to give an opportunity, the impugned I.A. was allowed and the evidence of P.W.1 was re-opened for the purpose of cross- examination by the first defendant on payment of costs of Rs.1,000/-. It is not in dispute that the revision being C.R.P.No.5236 of 2007 was dismissed by this Court on 10.4.2008. Pending the revision the plaintiffs undertook that they will not proceed with the trial of the suit, but affidavit in lieu of chief-examination of P.W.1 was filed on 26.3.2008 i.e. even before the dismissal of the revision. Therefore, the first defendant-first respondent should be given an opportunity to cross-examine P.W.1. In that view of the matter, the discretion exercised by the lower Court in view of the peculiar facts of this case does not suffer from any illegality warranting interference by this Court. However, as and when P.W.1 is called for the purpose of cross- examination and if the first defendant-first respondent fails to proceed with the cross-examination, on each such date, the Court below shall impose costs of Rs.500/- for the failure to proceed with the cross- examination of P.W.1. The revision is accordingly dismissed. No costs. _______________ A. GOPAL REDDY, J. MARCH 04, 2011 Tsr.