IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETH DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.869 of 2010 Between: Chandra Raja Gopal ..Petitioner AND M. Krishna Kumari and others .. Respondent ORDER: This revision is directed against the docket order dated 09- 02-2010 in O.S.No.4 of 1999 on the file of the Court of I Additional District Judge, Medak at Sangareddy, rejecting the petition filed to recall PWs.2 and 3 for cross-examination by the counsel for the defendants on issuing summons to them through Court alleging that they were refusing to attend the court otherwise. The affidavit in support of the petition was given by the clerk of the advocate for the plaintiff stating that while the cross- examination of PWs.2 and 3 by the 1st defendant was completed on 17-07-2007, they were further directed to attend before the Court for cross-examination by the other defendants as per the order in I.A.Nos.85 to 91 of 2009 dated 19-11-2009. However, as PWs.2 and 3 were expressing their inability to come to the Court, the plaintiff requested for summoning PWs.2 and 3 through Court undertaking to bear the expenses of the witnesses including travelling and other allowances. The trial Court was disinclined to consider the request not only on the ground of the affidavit not being sworn in by the plaintiff himself, but also on the ground of the petition being belated after not producing PWs.2 and 3 on several dates of adjournments. Therefore, the trial Court directed the evidence of PWs.2 and 3 to be discarded. The plaintiff, therefore, approached this Court with this revision contending that PWs.2 and 3 are residing at more than 600 Kms distance from the Court house and the cross- examination by defendants 6, 7, 28 and 29 was dragged on by their counsel due to which PWs.2 and 3 are reluctant to attend the Court. Merely because the suit is an identified case, the Court cannot refuse to follow the provisions of the Code of Civil Procedure in this regard. Hence, he desired the impugned order to be reversed. Sri M. Chinna Swamy, learned counsel, representing Sri K. Anoop Kumar, learned counsel for the revision petitioner and Sri T. Lakshmi Narayana, learned counsel for respondents 6, 7, 28 and 29 are heard. Though notice of this petition is not served on the 1st respondent, such service is not awaited as cross-examination, on behalf of the 1st respondent, of PWs.2 and 3 was already completed and any order passed herein will not prejudice the rights of the 1st respondent. The point for consideration is whether the assistance of the trial Court should be extended to the plaintiff in securing the presence of the witnesses, PWs.2 and 3? The provisions of Order XVI of the Code of Civil Procedure provide for a party seeking and obtaining the assistance of the court in summoning and securing the attendance of witnesses before the Court. It is seen that in this case PWs.2 and 3 were brought to the Court at the first instance and examined and the said witnesses also attended the Court subsequently when they were cross-examined on behalf of the 1st defendant and while they were not cross-examined by the other defendants earlier, it was only as per the orders passed in I.A.Nos.85 to 91 of 2009 dated 19-11-2009 that the plaintiff is now obliged to have the presence of PWs.2 and 3 for the cross-examination by the other defendants. The reason assigned by the plaintiff for seeking the assistance of the Court as being due to the reluctance of the witnesses to go around the Court having already attended the Court for number of adjournments is neither unnatural nor unreasonable and if for that reason the evidence of PWs.2 and 3 was discarded, the case of the plaintiff is undoubtedly prejudiced in the absence of such material for no fault of his. It may be true that the affidavit in support of the petition for summoning the witnesses was by the advocate’s clerk. But, for the fault of the counsel in not obtaining the affidavit of the party in support of his petition, the plaintiff need not suffer. In extending the required assistance to the party to secure the presence of the material witnesses, who were already examined in part earlier, a liberal view ought to have been taken by the Court, but not a strictly legalistic and technical view, maybe being influenced by the fact that the suit is a matter identified for disposal. The request of the plaintiff can be permitted of course subject to his acting promptly at least now. Therefore, the docket order dated 09-02-2010 in O.S.No.4 of 1999 on the file of the Court of I Additional District Judge’s Court, Medak at Sangareddy, is set aside and the petition filed by the plaintiff under Order XVI Rules 1 and 2 and Section 151 of the Code of Civil Procedure for summoning PWs.2 and 3 through Court to attend for further cross-examination is allowed and the plaintiff shall take steps forthwith for summoning PWs.2 and 3 and in the event of default of the plaintiff in taking such steps, the trial Court can proceed further with the trial recording the evidence of PWs.2 and 3 to have been discarded due to the default of the plaintiff. The Civil Revision Petition is ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 09-07-2010 Ksn