THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.4839 OF 2006 DATED ______JULY, 2010 BETWEEN Mummaneni Venkata Nagender Rao … Petitioner And Kampa Hanoku and another. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.4839 OF 2006 O R D E R The refusal by the trial Court to recall a witness for further cross- examination is called in question. Sri V.Ravinder Rao, learned counsel for the petitioner and Sri S.Rajan, learned counsel for the first respondent advanced arguments. Perused the record pertaining to the suit O.S.No.799 of 1999 which was placed before this Court pursuant to the order dated 29.06.2007. The second respondent filed the suit O.S.No.799 of 1999 on the file of the II Additional Senior Civil Judge, Visakhapatnam, against the first respondent seeking cancellation of registered sale deed No.3850/1999 dated 20.08.1999 executed by him in favour of the first respondent pertaining to the plaint schedule property, on the ground that the same was invalid, inoperative and without consideration. The petitioner herein is not a party to the said suit. While so, the first respondent filed the suit O.S.No.273 of 2001 on the file of the V Additional Senior Civil Judge, Visakhapatnam, against the second respondent and the petitioner for recovery of possession of the plaint schedule property, being the same as in O.S.No.799 of 1999 and for past and future mesne profits. It appears that the petitioner, being the holder of an agreement of sale executed by the second respondent, pertaining to the land on which the plaint schedule property in these two suits stands, filed a suit for specific performance of the said agreement in O.S.No.588 of 1999 on the file of the Principal Senior Civil Judge, Visakhapatnam, which was decreed ex parte on 08.10.1999, whereby he was inducted into possession. Hence, he was arrayed as a party by the first respondent in his suit for recovery of possession. The plaint schedule property is a building with D.No.55- 5-40 in Sy.No.24/8 of Patha Venkojipalem, Maddilapalem, Visakhapatnam. While so, the first respondent filed Tr.O.P.No.1127 of 2005 seeking transfer of O.S.No.273 of 2001 from the file of the V Additional Senior Civil Judge to that of the II Additional Senior Civil Judge where O.S.No.799 of 1999 filed against him was pending. The petition was ordered on 13.05.2005. The trial in O.S.No.799 of 1999 commenced with the filing of the affidavit in lieu of chief-examination of P.W.1 (second respondent/plaintiff in O.S.No.799 of 1999) on 15.07.2005. Pertinent to note, this affidavit is dated 07.02.2005 but was filed after a lapse of over five months. The cross-examination of P.W.1 commenced on 13.12.2005 and continued on 28.02.2006. While so, an application was filed by the first respondent for clubbing of the two suits for joint trial and recording of common evidence, which was ordered on 16.06.2006. It appears that the cross-examination of P.W.1 was in fact deferred on 28.02.2006 to enable disposal of the said petition. Thereafter, the cross-examination of P.W.1 continued on 03.07.2006 and 04.07.2006. This cross-examination was done only by the counsel for the first respondent. Relevant to note, by the date the cross-examination of P.W.1 concluded on 04.07.2006, the suits had been clubbed together for recording of common evidence and the petitioner herein was well aware of the same. He did not however seek the permission of the Court to cross-examine P.W.1 at this stage. The first respondent then adduced evidence as D.W.1. His evidence affidavit dated 20.07.2006 was filed on the very same day and his further chief-examination continued on 26.07.2006. He was cross-examined on 27.07.2006 by the counsel for the second respondent and by the petitioner’s counsel. On 01.08.2006 the docket shows that no request was made for adducing further evidence and accordingly the defendant’s side evidence was closed. The matter was directed to be posted for arguments on 07.08.2006. On 07.08.2006 as both sides were not ready, the matter was directed to be listed on 09.08.2006. On that day, the petitioner filed an application seeking re-opening of the suit to enable him to adduce evidence. As there was no objection, the trial Court allowed the application on 10.08.2006. The petitioner, as D.W.2, filed his evidence affidavit on 10.08.2006 and his chief-examination continued on the said date. He was cross-examined by the counsel for the first respondent on 18.08.2006 and 24.08.2006. Relevant to note, he was not cross-examined by the counsel for the second respondent. The matter was adjourned to 31.08.2006 for further evidence, if any. On that day, as there was no further evidence on the defendant’s side, the defendant’s side evidence was also closed. However, the petitioner filed the subject I.A.No.573 of 2006 under Order XVIII, Rule 17 on that very day seeking to recall P.W.1 for further cross-examination. In his affidavit filed in support thereof, the petitioner stated that the suits had been clubbed vide order dated 16.06.2006 by which date P.W.1 was already examined in O.S.No.799 of 1999 and he could not cross-examine him as he was not a party to the said suit. He further stated that by mistake, he did not file the application earlier and sought an opportunity for cross-examining P.W.1 as otherwise he would be put to loss. By its order dated 18.09.2006, the trial Court dismissed the said application, leading to the filing of this Civil Revision Petition. Perusal of the order under attack reflects that the trial Court was of the opinion that the delay on the part of the petitioner in seeking recall of the witness indicated collusion between the petitioner and the second respondent. The trial Court took note of the fact that the cross- examination of P.W.1 went on till July, 2006, i.e., even after the clubbing of the two suits for common evidence and joint trial and that the matter proceeded thereafter with the recording of the evidence of the second respondent and the petitioner. Therefore, the trial Court held that the petition was belated and that the petitioner and the second respondent were sailing in the same boat. Ergo, the trial Court opined that an opportunity could not be given to the petitioner to further cross-examine the second respondent (P.W.1). Relevant to note, the first respondent filed his counter to the subject petition stating that there was no conflict of interest between the petitioner and the second respondent as was evident from their pleadings and therefore, there was no necessity for allowing opportunity to the petitioner to cross-examine the second respondent (P.W.1). He further stated that during the cross-examination of the second respondent (P.W.1) and the petitioner (D.W.2) certain important factual aspects had been elicited by his counsel and alleged that the attempt of the petitioner in seeking further cross-examination of the second respondent (P.W.1) was only to dilute and get over the crucial information so extracted. The admitted facts that emerge from a conspectus of the docket proceedings in the suit are that though the cross-examination of P.W.1 concluded on 04.07.2006 and that of D.W.1 (the first respondent) on 27.07.2006, no attempt was made by the petitioner to recall P.W.1 for further cross-examination. In fact, even thereafter, the petitioner only took steps for reopening of the suit so as to adduce evidence himself but did not seek an opportunity for further cross-examination of P.W.1. The petitioner’s evidence as D.W.2 concluded on 24.08.2006. It was only thereafter on 31.08.2006 that the petitioner came up with this plea. There is no explanation as to why he did not seek an opportunity earlier, given the aforestated sequence of events. I find merit in the contention of Sri S.Rajan, learned counsel, that the reasons put forth by the petitioner are laconic, to say the least. When the petitioner took steps belatedly for reopening of the suit to enable him to adduce evidence as D.W.2, it is inexplicable as to why he did not choose to cross-examine P.W.1 at least at that stage. This conduct on the part of the petitioner lends credibility to the contention of the first respondent that the opportunity to further cross-examine P.W.1 is only being sought to get over the information extracted during the cross-examination of P.W.1 and D.W.2. In SMT.M.M.AMONKAR v. DR.S.A.JOHARI[1], while dealing with Order XVIII, Rule 17 of the Code of Civil Procedure, the Supreme Court observed to the effect that unless the reasons given by the trial Court for refusing the application to recall a witness are moonshine, flimsy or irrational, the rejection of such application cannot be dubbed as suggestive of a non-judicial approach or bias or partiality. This was reiterated by the Supreme Court in VADIRAJ NAGGAPPA VERNEKAR v. SHARADCHANDRA PRABHAKAR GOGATE[2] wherein it was observed that the main purpose of Order XVIII, Rule 17 of the Code of Civil Procedure was to enable the Court while trying a suit to clarify any doubts which it may have with regard to the evidence led by the parties and the provision was not intended to be used to fill up omissions in the evidence of a witness who has already been examined. On facts, the Supreme Court observed that the evidence sought to be introduced by recalling the witness was available at the time when the affidavit of evidence was prepared and affirmed. The Court further observed that no new facts had been discovered subsequently which were not within the knowledge of the applicant and accordingly upheld the order of the High Court dismissing the application for recall of the witness. The observations of the Supreme Court are apposite: “29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination.” Closer home, in KADA KONDAYYA v. KADA VEERA VENKATA SATYA KUMARI[3], a learned Judge of this Court held that in the event of allegations of collusion between two parties it would be contrary to stipulated procedure if the party making such allegation is asked to cross-examine one such party before cross-examination by the colluding party. The learned Judge opined that actual cross-examination takes place when it is done by the party who is opposing the claim of the other side, not by one who sails with such party. The learned Judge further observed that if the opposing party is able to elicit any information during the cross-examination it would be at the risk of neutralization if the colluding party is permitted to cross-examine such witness thereafter. I n KARUMANCHI SUBBA RAO v. YARLAGADDA VENKATAPPAIAH[4], a learned Judge of this Court observed that the right to cross-examine a witness was conferred by the statute upon the person who has an interest adverse to the one who is to be cross- examined, as the very purpose of such cross-examination was to test the veracity of the testimony of the witness. It was held that when a defendant requested the Court to decree the suit of the plaintiff, he could not be said to have any interest that could be characterized even remotely as adverse to the plaintiff. This is in keeping with the principle laid down in KADA KONDAYYA3, as allowing a party who is sailing with the plaintiff an opportunity of cross-examination after the cross- examination by the actually opposing party would lead to neutralization of the evidence elicited by such party during the cross- examination. In the present case, though it cannot be said with certainty at this stage that there is any collusion between the petitioner and the second respondent the fact remains that the second respondent did not even choose to cross-examine the petitioner (D.W.2). Further, the record reflects that the petitioner’s suit O.S.No.588 of 1999 was decreed ex parte against the second respondent who did not even assail the same. Apart from these aspects, the fact also remains that the petitioner’s conduct, detailed hereinabove, clearly indicates that there was delay on his part in seeking recall of P.W.1 even if it is for a genuine purpose. This delay lends support to the first respondent’s plea that with hindsight, the evidence elicited from P.W.1 during his cross-examination is sought to be diluted and neutralized by subjecting him to further cross-examination through the petitioner. In the totality of these circumstances, the reasons furnished by the trial Court for refusing to recall P.W.1 for further cross-examination cannot be said to be moonshine, flimsy or irrational. The order under challenge therefore does not call for interference and is accordingly confirmed. The Civil Revision Petition is dismissed, but in the circumstances of the case without costs. ---------------------------- SANJAY KUMAR, J. __________ JULY, 2010. PGS/VGSR [1] (1984) 2 SCC 354 [2] (2009) 4 SCC 410 [3] 2006 (5) ALD (NOC 91) [4] 1977 (1) APLJ 354