THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION No.2821 of 2009 Date:24.11.2009 Between: Ugiri UmaMaheswari and others. ..Petitioners. and Balla Punyavathi. ..Respondent. THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION No.2821 of 2009 ORDER: This revision is filed against the order of the Principal Junior Civil Judge, Palakonda, in I.A.No.595 of 2008 in O.S.No.48 of 2005 dated 17.02.2009. The revision petitioners herein are the defendants in the suit. O.S.No.48 of 2005 was filed by the respondent herein for recovery of money based on a promissory note. I.A.No.595 of 2005 was filed by them under Order XVIII Rule 17 and Section 151 of the Code of Civil Procedure, 1908, seeking to recall P.W.1 to cross-examine him. The Court below, by order dated 17.02.2009, dismissed the I.A. recording that the respondent-plaintiff had examined her husband as P.W.1 by filing a chief affidavit on 22.02.2006; that the defendants had sought several adjournments thereafter to recall P.W.1; that they had filed an application for framing additional issues which was allowed on 17.07.2007 and the matter was posted for cross examination of P.W.1; that the defendants had failed to cross examine P.W.1 even after several adjournments were granted thereafter; that finally on 20.12.2007, as the defendants did not appear before the Court, the evidence of P.W.1 was closed and the matter was posted for further evidence on the plaintiff’s side to 22.01.2008; that, on 22.01.2008, the chief affidavit of P.W.2 was filed and the matter was posted to 31.01.2008 for cross examination; that even on 31.01.2008 the defendants failed to cross examine P.W.2 and hence the case was adjourned on payment of costs of Rs.50/-; that, in the meanwhile, the defendants filed I.A.No.41 of 2008 to recall P.W.1 for cross examination; that, after enquiry, the Court below had allowed the I.A. on imposition of costs of Rs.200/- by recalling P.W.1 for cross examination on 27.08.2009 and, thereafter, the matter was posted to 11.09.2008, 26.09.2008, 24.10.2008 and finally to 11.11.2008 to enable P.W.1 to be cross examined but the defendants did not cross examine him and as such the matter was closed and was posted to 21.11.2008 for cross examination of P.W.2. The Court below noted that, on 21.11.2008, the present I.A. was filed by the defendants to recall P.W.1 for cross examination on the ground that, on 11.11.2008 i.e., Tuesday, their counsel used to observe silence and, as such, did not come to Court to cross examine the witness. The Court below observed that, if the matter had been posted to 11.11.2008 for the first time for cross examination of P.W.1, this plea could have been considered but, as the matter was coming for cross examination of P.W.1 eversince 22.02.2006 for about 2 years 9 months and the defendants did not choose to cross examine him, it showed gross negligence on their part and, as they were sleeping over their rights and their endeavour was only to drag on the matter, the Court did not find any reasonable cause for allowing the application. The I.A. filed by the petitioners was, accordingly, dismissed. While Sri K. Bhaskara Rao, learned counsel for the petitioners, contends that the petitioners had merely sought adjournment by a day as their counsel was observing silence every Tuesday and could not attend Court, Sri K. Purushotham, learned counsel for the respondent, would take the Court through the impugned order in detail to contend that the petitioners’ endeavour was only to drag on the matter and, having failed to cross examine P.W.1 for more than 2 ½ years, their contention regarding the counsel observing silence on every Tuesday was but a ruse to drag on proceedings indefinitely. It is evident from the order of the Court below that the petitioners had failed to avail the opportunity to cross examine P.W.1 despite several adjournments being granted. While, ordinarily, this Court would be loathe to interfere with the discretion exercised by the Court below in such matters, considering the submission made by Sri K. Bhaskara Rao, learned counsel for the petitioners that the petitioners have an excellent case on merits, I consider it appropriate to give the petitioners a final opportunity to cross examine P.W.1 subject, however, to the condition that they pay Rs.7,500/- (Rupees seven thousand and five hundred only) as costs to the respondent. Costs, as aforementioned, shall be deposited in the Court below within a period of two weeks from today and, on such deposit, the Court below shall have the said amount handed over to the respondent. The Court below shall fix a date for the presence of P.W.1 on which date, whether or not it is a Tuesday, the petitioners shall avail the opportunity of cross examining P.W.1. It is made clear that, in case costs as aforesaid is not deposited in the Court below within the time stipulated hereinabove, or in case the petitioners fail to avail the opportunity of cross examining P.W.1 on the date fixed by the Court below, the petitioners right to cross examine P.W.1 shall stand forfeited and the order impugned shall stand restored and the Court below shall proceed with the trial of the suit in accordance with law. The order, in I.A.No.595 of 2008 in O.S.No.48 of 2005 dated 17.02.2009, is set aside and the Civil Revision Petition is disposed of with the above observations and directions. There shall be no order as to costs. __________________________ (RAMESH RANGANATHAN, J) 24th November, 2009 Note: Issue CC in two days. (B/o) GHN