THE HONOURABLE SRI JUSTICE G. CHANDRAIAH C.R.P. No.3315 of 2009 Date: 02-11-2009 Between: Gurram Dhanalakshmi and another … Petitioners And Thummapudi Venkateswara Rao and others … Respondents THE HONOURABLE SRI JUSTICE G. CHANDRAIAH C.R.P. No.3315 of 2009 ORDER: This revision petition has been filed aggrieved by order dated 22.04.2009 passed in I.A. No.622 of 2009 in O.S. No.904 of 2003 by the learned Principal Junior Civil Judge, Ongole. The petitioners herein are the defendants 1 and 2, respondents 1 and 2 herein are the plaintiffs 1 and 2, respondents 3 and 4 herein are the defendants 3 and 5 and the 5th respondent herein is the 4th defendant in O.S. No.904 of 2003. I.A. No.622 of 2009 in O.S. No.904 of 2003 was filed by the defendants 1 and 2 under Section 151 CPC seeking to set aside the order, dated 29.01.2009, of eschewing the evidence of PW.1 on a memo dated 29.01.2009 filed on the instructions of the Court below. The Court below dismissed the impugned application holding that there are no merits. Assailing the same, the present revision petition has been filed. The learned counsel for the revision petitioners/defendants submitted that earlier, the plaintiffs filed two applications in I.A. Nos.1597 and 1598 of 2008 seeking to expunge the chief affidavit of PW.1, plaintiff No.1 Thummapudi Venkateswara Rao, and to permit his son, Thummpudi Vijaya Kumar, to give evidence on behalf of plaintiff No.1, respectively. The Court below dismissed both the applications on 22-08-2008 observing that at that stage chief affidavit of PW.1 cannot be expunged as he was cross examined in part. Thereafter, plaintiff No.1 filed another application in I.A. No.2785 of 2008 along with a document, which is Power of Attorney Deed, to permit his son to prosecute the suit proceedings on behalf of the plaintiffs. The Court below allowed the same, which is conflicting to the order passed in I.A. Nos.1597 and 1598 of 2008, though there are no changed circumstances. Consequently, the son of the plaintiff No.1 filed his chief affidavit. While things stood thus, on 29.01.2009 the Court below asked the counsel for the plaintiffs to file a memo to eschew the evidence of P.W.1. Accordingly memo was filed on 29.01.2009 and the said memo was allowed eschewing the evidence of PW.1. The revision petitioners/defendants have not been given any notice with regard to the above said memo and they have no knowledge about the contents of the memo and the same has come to know on seeing the diary only. He further submitted that once the evidence of PW.1 was recorded and he was subjected to cross examination that portion of evidence cannot be eschewed for which, the learned counsel placed reliance upon the judgment reported in MAHALINGAPPA AND OTHERS v. KARIYANNA[1] that the entire evidence cannot be eschewed. On the other hand, the learned counsel for the respondents/plaintiffs submitted that there is no dispute to the extent that they have filed two applications in I.A. Nos.1597 and 1598 of 2008 and the PW.1 was subjected for cross examination to some extent. PW.1 is aged about 73 years and he is not in a position for further examination. Therefore, he filed another I.A. No.2785 of 2008 seeking permission to represent his son as General Power of Attorney together with evidence on his behalf and to prosecute his case. The said application was allowed and the said order has become final since the same was not challenged. Thereafter, a memo was filed seeking to eschew the evidence of PW.1 and the same was ordered. When the revision petitioners did not challenge the order passed in I.A. No.2785 of 2008, which has attained finality, they cannot question the consequential order, passed in memo filed by the plaintiffs. In such circumstances, the Court below had rightly dismissed the application in I.A. No.622 of 2009 filed by the revision petitioners. He further submitted that the case relied upon by the learned counsel for the revision petitioners to say that the Court cannot pass any order eschewing evidence already recorded cannot be made applicable to the facts and circumstances of the case in hand since certain admissions were made in the case one supra. Therefore, under those circumstances, the Court had observed that the evidence recorded to the extent cannot be eschewed. It is not the case on hand that any admissions have been made by PW.1. Eventually, he submitted to dismiss the revision petition upholding the impugned order that does not suffer from any legal infirmity. Heard the learned counsel on either side and perused the material on record. It is not in dispute that the revision petitioners are the defendants in O.S. No.904 of 2003 that was filed by the plaintiffs seeking injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiffs of the suit schedule property and the plaintiffs have obtained ad interim injunction, pending consideration of the suit. Though no reference has been made with regard to the same, in this proceedings, but the same has not been contradicted or disputed by the learned counsel. In that process, the said suit is proceeding for trial. The main grievance of the revision petitioners/defendants is that the plaintiff No.1 filed chief affidavit and subjected to cross examination to some extent. Thereafter, when the plaintiffs have filed two applications seeking to expunge the chief affidavit of the plaintiff No.1 and permit the son of the plaintiff No.1 to give further evidence on behalf of the plaintiff No.1 both the applications were dismissed. Subsequent to dismissal of these two applications, the plaintiffs have again filed another application seeking to permit the son of the plaintiff No.1 to prosecute the proceedings on behalf of the plaintiffs and the same was allowed. Thereafter, a memo was also filed seeking to eschew the evidence of the plaintiff No.1 and the same was also allowed, without there being any notice to the defendants. Assailing the same, an application in I.A. No.622 of 2009 was filed by the defendants seeking to set aside the eschewed order but the same was dismissed holding that there are no merits. On the other hand, the case of the respondents/plaintiffs is that the revision petitioners/defendants cannot challenge the order made in the memo without challenging the order passed in I.A. No.2785 of 2008, permitting the son of the plaintiff No.1 to prosecute the case on behalf of the plaintiffs. The order passed in the memo is only consequential since the revision petitioners/defendants did not challenge the validity of the order already passed in I.A. No.2785 of 2008. Therefore, the defendants have no scope to question the validity of the order made in the memo, with notice or without notice, it does not affect the right of the defendants. It was also submitted by the learned counsel for the respondents/plaintiffs that it is not the case of the revision petitioners that there are any admissions have been made by the plaintiff No.1, which are in favour of the revision petitioners, in such an event, the revision petitioners might be put to irreparable loss or prejudice. The contention of the learned counsel for the revision petitioners is only that order passed in the memo is contrary to the order already passed in I.A. Nos.1597 and 1598 of 2008. The facts narrated in I.A. Nos.1597 and 1598 of 2008 are that the Plaintiff No.1 was suffering from blood pressure and diabetes due to which he was feeling dull and unable to understand any question put to him to give immediate answer for it and he was unable to recollect his memory and he was advised to take rest for which, the Court below reasoned that the blood pressure and diabetes are common ailments and most of the persons are suffering from the said ailments and they are normally attending their regular duties commonly without any obstruction and therefore, the Court below had rightly justified in dismissing those two applications. Further, an application in I.A. No.2785 of 2008 was filed with a supporting document that General Power of Attorney has been given to the son of the plaintiff No.1 to prosecute the case on behalf of the plaintiffs and to adduce evidence on behalf of the Plaintiff No.1, in such circumstances, the Court below had rightly allowed the application and permitted the son of the Plaintiff No.1 to prosecute the case on behalf of the plaintiffs. Thereafter, no petition was filed questioning the order passed in I.A. No.2785 of 2008. At this juncture, it is pertinent to note that, even for a moment it is taking into consideration that no notice was given to the defendants, it is not known what prevented them to file appropriate petition questioning the order passed in I.A. No.2785 of 2008, soon after when, on enquiry, they came to know with regard to the order passed in I.A. No.2785 of 2008. Thereafter, in a usual course, the counsel for the plaintiffs filed a memo seeking to eschew the evidence of the Plaintiff No.1 and the same was allowed. Under those circumstances, I am of the view that the Court below had rightly dismissed earlier two applications and had rightly allowed the later application. Since there was no appropriate petition was filed questioning the order passed in I.A. No.2785 of 2008 the Court below had rightly allowed the consequential memo filed by the plaintiffs seeking to eschew the evidence of Plaintiff No.1 for further evidence of his son, power of attorney. In the case of Mahalingappa one supra this Court held as follows: “Chapter X of the India Evidence Act, 1872, deals with the examination of the witnesses. As per Section 138 of the Evidence Act, a witness shall be first examined in chief and then he can be cross- examined if the opposite party so desires. In case a witness, after examination-in-chief, failed to make himself available for the cross-examination by the opposite party, may be his evidence in chief can be eschewed since there was no opportunity to the opposite party to test the veracity of the evidence in chief. However, when a witness was already cross- examined by the adverse party to some extent, merely because he failed to make himself available for further cross-examination, the entire evidence cannot be eschewed. It is relevant to note that cross-examination under Section 138 of the Evidence Act need not be confined to the facts to which the witness testified in his examination-in-chief but he can be examined as to the whole of the case. Particularly in the present case, Ex.A.3 document was marked on behalf of the plaintiff through DW1 and according to the plaintiff certain material admissions were also made by DW1 during his cross-examination. In the circumstances, the eschewal of the entire evidence of DW1 causes prejudice to the plaintiff. It is also relevant to note that setting aside such an order does not result in compelling DW1 to subject himself to further cross- examination, but it would only enable the Court to take into consideration the evidence already recorded. Hence, the order dated 17.8.2007 eschewing the evidence of DW1 was erroneous and the said procedure adopted by the Court below resulted in failure of justice.” From the above, it is obvious that after DW.1 was cross-examined to some extent and thereafter he himself was not available for further cross examination and Ex.A.3 document was also marked on behalf of the plaintiff therein and certain material admissions were also made by DW.1, during his cross examination. But in the case on hand, it is not the case that the plaintiff No.1 he himself was not available but he had given general power of attorney to his son to prosecute the case on behalf of the plaintiffs and the same was allowed by the Court below and on filing a memo to eschew the evidence of plaintiff No.1 and the same was also allowed. The facts and circumstances of the case referred to above and the facts and circumstances of the case on hand are different. Hence, the judgment referred to above, one supra, by the learned counsel for the revision petitioners, is not applicable to the facts and circumstances to the present case. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side, I am of the view that the order under impugned does not suffer from any patent error of fact or law warrants no interference by this Court in exercise of power of superintendence conferred under Article 227 of the Constitution of India. Accordingly, the Civil Revision Petition is dismissed upholding the order dated 22.04.2009 made in I.A. No.622 of 2009 in O.S. No.904 of 2003. There shall be no order as to costs. ____________________________ JUSTICE G. CHANDRAIAH Date: 02.11.2009 LSK [1] 2009(5) ALD 395