THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No.5439 OF 2008 DATED:29.03.2011 Between: Kontham Kasulamma & another. .... PETITIONERS And Palaparthi Appanna @ Konda. .... RESPONDENT ORDER: This Civil Revision Petition is directed against the order, dated 14.08.2008, in I.A.No.545 of 2008 in O.S.No.88 of 2008 on the file of the learned Senior Civil Judge, Narasipatnam village, Visakhapatnam District, wherein the said application filed by the petitioners herein under Section 151 CPC requesting the Court to return the chief-examination affidavit filed by P.W.1, was dismissed. 2. Heard learned counsel for the petitioners. None appears for the respondent though served with notice. Perused the record. 3. Respondent herein filed the suit against the petitioners and others for declaration of title and for permanent injunction in respect of the plaint schedule property. Petitioners herein are impleaded as defendants 8 and 10 in the suit. They along with the other defendants filed written statements. Necessary issues were settled and when the matter was taken up for trial, respondent- plaintiff was examined as P.W.1 and his affidavit in chief was filed on 18.11.2005. Subsequently, the defendants were set ex parte and ex parte decree was passed and the petitioners-defendants 8 and 10 filed I.A.No.67 of 2005 for setting aside the ex parte decree and the same was allowed on 08.02.2006 and the ex parte decree was set aside. Thereafter, the cross- examination of P.W.1 by the petitioners-defendants 8 and 10 was eschewed and he was cross-examined in part on 28.07.2006. It is alleged that at that stage, the Court suo motu directed the respondent-plaintiff to file a fresh affidavit in chief and the respondent-plaintiff filed the same. Petitioners-defendants 8 and 10 took objection for the same and filed I.A.No.545 of 2008 requesting the Court to return the second affidavit in chief filed by P.W.1. The trial Court dismissed the said application by the impugned order. Aggrieved by the same, the present Civil Revision Petition is filed. 4. Learned counsel for the petitioners would submit that the procedure adopted by the trial Court is irregular and filing of the second affidavit in chief while the first affidavit was on record and when the witness-P.W.1 was being cross-examined is not contemplated by the procedure. 5. The trial Court passed a cryptic docket order to the effect that the cross-examination has to be proceeded with in pursuance of the chief affidavit filed on 09.10.2007 and the affidavit filed earlier on 18.11.2005 has no locus standi and the same is kept on record. The above impugned order is in a way a contradiction in terms. No reasons are furnished as to why the earlier chief affidavit is to be ignored. In fact, the order states that the earlier chief affidavit is kept on record. The chief affidavit already filed cannot be eschewed from consideration without any reason. When the ex parte decree was set aside the proceedings have to be resumed from the stage at which they were left prior to passing the ex parte decree. Simply because the ex parte decree is passed basing on the chief affidavit filed earlier the said affidavit, which is nothing but evidence of P.W.1 in chief, does not get obliterated nor can it be eschewed from consideration. The said chief affidavit, which is nothing but the evidence of P.W.1, would continue to remain on record and the defendants are entitled to cross-examine P.W.1 on the basis of the contents of the said affidavit, may be with the permission of the Court. The plaintiff can depose any further chief in case the earlier chief affidavit is found to be lacking on some particulars but the said chief affidavit can neither be taken out of the record nor can it be eschewed from consideration. The question of the said chief affidavit filed on 18.11.2005 loosing locus standi does not arise. In fact, the impugned order also states that the said affidavit shall remain on record. Petitioners-defendants 8 and 10 are therefore entitled to cross-examine P.W.1 based on the contents of the said affidavit filed on 18.11.2005 and in fact, they have cross-examined P.W.1 in part. The direction, if any, issued by the Court to the plaintiff to file a fresh affidavit in chief is totally unwarranted. The second affidavit in chief filed on 09.10.2007 does not have the effect of obliterating the earlier chief affidavit, dated 18.11.2005. The cross-examination of P.W.1 has to be necessarily proceeded with on the basis of the chief affidavit filed on 18.11.2005. It is open to the plaintiff to seek the permission of the Court to adduce further evidence by way of further chief examination. The procedure adopted by the trial Court is irregular and the impugned order is unsustainable. Accordingly, the impugned order is set aside. Consequently, I.A.No.545 of 2005 stands allowed. 6. Accordingly, Civil Revision Petition is allowed. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 29th March, 2011. Tsy