IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE C.V. RAMULU CIVIL REVISION PETITION No.4095 of 2010 BETWEEN Gummalla Satya Kamalkar Reddy and three others. ... PETITIONERS AND Juturu Raghunatha Reddy. ...RESPONDENT Counsel for the Petitioners : MR. M.N. NARASIMHA REDDY Counsel for the Respondent: MR. V.R. REDDY KOVVURI The Court made the following: ORDER: This revision petition under Article 227 of the Constitution of India is directed against the order made in I.A.No.53 of 2010 in O.S.No.20 of 2005 dated 13.08.2010 on the file of the Additional Senior Civil Judge, Kadapa, whereunder the said application filed under Section 151 of the Code of Civil Procedure, 1908 by the respondent (D5) herein to eschew the evidence of P.W.1 and to dismiss the suit was allowed in part eschewing the evidence of P.W.1. 2. Petitioners are the plaintiffs and the respondent is defendant No.5. It appears that the respondent filed the aforesaid application on the ground that though several adjournments were granted, P.W.1 did not make himself ready for cross-examination. The petitioners filed the aforesaid suit for declaration of title and for permanent injunction and during the pendency of the suit P.W.1 filed affidavit in chief on 10.08.2007 and on 26.06.2009, the matter was adjourned for cross-examination of P.W.1 and further on 13.11.2009 a condition was imposed that if P.W.1 failed to attend the Court, his evidence will be eschewed on 20.11.2009. Even then P.W.1 failed to attend the Court for the purpose of cross-examination. Learned counsel for the respondents therein argued that there is no fault on their part but due to non-availability of regular Presiding Officer on the file of the Court and as the said IA is pending, they are not in a position to cross-examine P.W.1 and further argued that the docket itself goes to show that there is no fault on their side. As per the endorsement on the docket, it appears that the matter has been adjourned for more than two years for cross-examination of P.W.1. Under those circumstances, as there was no other option the Court below ordered the petition eschewing the evidence of P.W.1. Aggrieved thereby, this revision petition is filed. 3. Learned counsel for the petitioners strenuously contended that merely because there was no Presiding Officer and for various other reasons, P.W.1 was not available for cross-examination, the Court below ought not to have eschewed the evidence of P.W.1. He further contended that the Court below ought to have seen that in a case of this nature, the application could have been disposed of imposing certain conditions but it has taken a pedantic approach to allow the application eschewing the evidence of P.W.1, which cuts at the root of the suit since P.W.1 is the first plaintiff and if his evidence is taken away nothing remains in the suit to establish the claim. 4. Learned counsel for the respondent contended that there was no fault on the part of the respondent and since P.W.1 himself evaded attending the Court for cross-examination, the Court below after examining the docket proceedings has rightly allowed the application. 5. I have given my earnest consideration to the respective submissions made by both the counsel and perused the impugned order and other material placed on record. 6. From the record it is clear that P.W.1 did not make himself available for cross-examination for more than two years on the ground that there was no Presiding Officer and for other circumstances, but that does not mean that the matter could have been dragged for more than two years for cross- examination. However, the approach of the Court below is pedantic and not pragmatic and practical. Eschewing the evidence of P.W.1 means defacing the claim of the plaintiff and the whole claim in the suit thereof. In those circumstances, I am of the considered opinion that the Court below ought to have given one more opportunity to the first plaintiff to make himself available for cross-examination and ought to have decided the matter on merits thereafter. 7. Under those circumstances, the impugned order is liable to be set aside and is accordingly set aside and the Court below is directed to fix a date, after hearing the counsel for the plaintiffs, for cross-examination of P.W.1 and if on the date fixed for cross-examination, P.W.1 does not make himself available, the order under challenge stands restored. The Court below shall thereafter dispose of the suit as expeditiously as possible within a period of six (6) months from the date of receipt of a copy of the order. The civil revision petition is accordingly allowed. There shall be no order as to costs. ____________ C.V. RAMULU, J February 1, 2011 Note: Furnish C.C. of the order in a week. (B/o) DSK