HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3443 OF 2008 DATE:11-02-2011 BETWEEN Kasumuri Dastagiri …Petitioner AND S. Vasantha Kumari & another …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3443 OF 2008 ORDER: This revision under Article 227 of Constitution of India is filed by the fourth defendant to revise the order of the VII Additional District and Sessions Judge (Fast Track Court), Vijayawada dismissing I.A.No.433 of 2008 in O.S.No.80 of 2005, dated 4.7.2008 filed to set aside the order, dated 16.6.2008 expunging the evidence of D.W.1 holding that he was not present in the court. Petitioner-fourth defendant filed the impugned I.A. stating that the matter was posted for cross-examination of D.W.1 and that he was present when the matter was called and he came inside the Court and stood and though one of the junior on behalf of his counsel represented that his counsel was held up in the Court of Principal Senior Civil Judge, Vijayawada in connection with E.P.No.133 of 2007 in O.S.No.947 of 1993, the Court was pleased to close the evidence on his side holding that he was not present. Therefore, on this ground, he sought to set aside the order, dated 16.6.2008. The very fact that the affidavit was filed immediately on the same date with the handwriting of the petitioner shows that he was present in the Court. But the Court below dismissed the impugned I.A. holding that if there was representation by the junior counsel on behalf of the petitioner, the same would have been mentioned by the Court in the docket and if the said fact is correct, affidavit of the said advocate, who represented the matter stating that the petitioner was present in the court when the suit is called would have been filed. Observing so, it was held that the petitioner made a false statement in the affidavit and he is not entitled for any relief. The approach of the lower Court in coming to the conclusion that the petitioner filed a false affidavit cannot be appreciated. The lower Court lost the sight of the fact that the impugned I.A. was filed on the same day, it was served on the advocate for the plaintiff and was presented in the Court on the same day. Unless the petitioner was present in the Court, it is not possible to file the above I.A. on the same day. Since the petitioner himself was present and he sworn the affidavit requesting that the advocate representing him was held up in other Court, it cannot be expected that the advocate would file an affidavit about the representation made by the petitioner. In that view of the matter, the impugned order is set aside and I.A.no.433 of 2008 is allowed as prayed for. The revision is allowed accordingly. No order as to costs. _______________ A. GOPAL REDDY, J. FEBRUARY 11, 2011 Tsr.