IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SIXTH DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.6268 of 2009 Between: Boggula Narayana and another .. Petitioners AND Smt. Boggula Laxmi .. Respondent Petition under Article 227 of the Constitution of India against the order dated 17-11-2009 in I.A. No.379 of 2009 in O.S. No.129 of 2008 on the file of the Senior Civil Judge, Zaheerabad, Medak District. The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri D. Bhaskar Reddy, Advocate for the petitioners and of Sri S.R. Deshmukh, Advocate for the respondent, the Court made the following ORDER: Heard Sri D. Bhaskar Reddy, learned counsel for the revision petitioners and Sri S.R. Deshmukh, learned counsel for the respondent. The revision petition is directed against dismissal of I.A. No.379 of 2009 in O.S. No.129 of 2008 on the file of Senior Civil Judge’s Court, Zaheerabad, dated 17-11-2009. The petition was filed by the defendants to recall P.W.3 for further cross-examination on the ground of the junior counsel not cross-examining the witness earlier completely and the senior counsel, who could not attend the Court then due to the ill-health of his father, has to cross-examine the witness on crucial aspects. The request was opposed by the plaintiff stating that P.W.3 was completely cross-examined by the counsel on record and on any such ground of the senior counsel not being able to cross-examine him, the witness cannot be recalled, more so without specifying the purpose of or reasons for further cross-examination. The trial Court rendered the impugned order stating that the suit for partition and separate possession is of the year 2008 and is one of the identified cases in 100 cases. The trial Court felt that no purpose or reasons for recall of P.W.3 were stated by the petitioners and P.W.3 was not cross-examined on 08-09-2009, but was cross-examined only on the adjournment date 17-09-2009. Consequently, finding no merits in the request, the petition was dismissed. The defendants seek in this revision reversal of the said order, as the request of the junior counsel to post the matter for further cross-examination was negatived and as the senior counsel could not attend, as his father was sick. The revision petitioners also contended that the junior counsel was not even allowed to file a petition for adjournment and the Judge insisted to proceed with the cross-examination of P.W.3. As Order XVIII Rule 17 of the Code of Civil Procedure provides for considering such a request at any stage of the suit, the revision petitioners desire P.W.3 to be permitted to be recalled. Before proceeding further, it should be first noted that the references in the grounds of revision to the alleged refusal by the Presiding Officer of the Court to consider permitting the junior counsel to file any petition for adjournment or to request for time for further cross-examination, etc., were made for the first time before this Court and are not in good taste. The revision petitioners should have avoided making such unsubstantiated references to the proceedings before the trial Court. It should then be noted that the impugned order also appears to be influenced by the fact that the suit for partition and separate possession is sufficiently old and is one of the identified cases in the first 100 cases on the file of the trial Court. Such considerations could not have been the determinative factors for deciding the civil rights of the parties. Though it is true that the defendants in support of the petition itself did not state the reasons or purpose for recall of P.W.3, Sri Bhaskar Reddy, learned counsel for the revision petitioners submitted that P.W.3 claimed to be a caste elder, who was a party to a panchayat between the parties, on which aspect no cross-examination was conducted by the junior counsel. The learned counsel also submitted that allegations were also made in the chief examination affidavit of P.W.3 about the nature of the properties and the affairs of the family of the parties, on which there was no cross-examination worth the name by the junior counsel. A copy of the evidence of P.W.3 already recorded has been furnished by Sri Bhaskar Reddy for perusal and it appears to be true that no cross-examination was done on the alleged panchayat held in the presence of P.W.3 or other details stated by P.W.3. As the cross-examination, ex facie, appears to be inadequate notwithstanding the omission in the affidavit in support of the petition concerning the reasons and purpose of recall, the witness can be permitted to be recalled on appropriate terms. The revision petitioners can be made to pay reasonable costs for the absence of diligence earlier and they can be permitted to recall under the circumstances, more particularly with reference to the alleged inability of the senior counsel to attend due to the sickness of his father. Therefore, the order in I.A. No.379 of 2009 in O.S. No.129 of 2008 on the file of the Senior Civil Judge, Zaheerabad, dated 17-11-2009 is set aside and the said petition will be allowed on payment of costs of Rs.300/- (Rupees three hundred only) by the revision petitioners to the credit of the Mandal Legal Services Committee, Zaheerabad within fifteen (15) days from today. In default, the petition stands dismissed. In case of the petition being allowed, the revision petitioners shall bear the expenses for recall and recording the evidence of P.W.3. The civil revision petition is ordered accordingly. No costs. _____________________ G. BHAVANI PRASAD, J Date: 06-07-2010 Svv