IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.4583 of 2009 Between: Mohd. Khairat Ali .. Petitioner AND Pushpa Devi and another .. Respondents ORDER: The plaintiff in O.S.No.92 of 2008 on the file of the Senior Civil Judge, Zaheerabad, Medak District, approached this Court with this revision petition against the order passed by the trial Court in I.A.No.363 of 2009 dated 01-09-2009, allowing the petition by the 2nd defendant to recall PW.1, PW.3 and DW.1 for further cross-examination. The 2nd defendant filed I.A.No.363 of 2009 contending that after commencement of trial in the suit, PWs.1 and 3 were cross- examined by her counsel and after the same, at the behest of the counsel, she engaged another counsel and on verification, the said counsel found that a number of documents were not confronted to the witnesses at the time of cross-examination of PWs.1 and 3, which were entrusted to the earlier counsel and not filed into the Court. True facts were, thus, suppressed from the Court and hence, the 2nd defendant requested for recalling the witnesses for confronting them with the said documents. The plaintiff opposed the request contending that any inefficiency of the counsel or conducting the case under ill advice cannot be a ground for reopening the evidence and recalling the witnesses. The previous counsel of the 2nd defendant is a senior member of the Bar voluntarily chosen by the 2nd defendant to defend her and the request for recalling the witnesses on false allegations is a fraud on the Court. The trial Court considered the rival contentions in the impugned order and on scrutinizing the entire case records, it found that the petition was filed through the present counsel of the 2nd defendant. The trial Court distinguished the decision reported i n Sriharinath v. Vani (1997 (5) ALT 209) cited before her and considered the ground for recalling the witnesses due to the erstwhile counsel not confronting the entrusted documents to the witnesses to be altogether a different ground. The trial Court relied on Pantham Brahmam v. Gollipalli Swaminaidu (1997 (2) ALT 652), wherein the power to recall the witnesses was held to depend on the set of circumstances before the Court and that if once the Court is satisfied, it is open to act upon the application. The trial Court also relied on S.S.S. Durai Pandian v. S.A. Samuthira Pandian (AIR 1998 Madras 323), wherein the powers under Order-XVIII Rule 17 of the Code of Civil Procedure were held to be very wide. Similar reliance was also placed on Jodhpur Gums & Chemicals Pvt. Ltd, v. Punjab National Bank (AIR 1999 Rajasthan 38), wherein it was pointed out that a party should not suffer because of the lapse on the part of the advocate and in the absence of any oblique motive, the request can be considered. The trial Court, therefore, felt that the power, which can even be exercised suo motu has to be exercised in view of the plea that some material documents were not confronted to the witnesses at the time of cross-examination. Therefore, the trial Court allowed the application, while directing the 2nd defendant to pay the expenses and diet charges to the witnesses. The plaintiff challenges the said order contending that the vague grounds mentioned in the application are not valid grounds to recall the witnesses and the particulars and the numbers of the documents, which are to be confronted, are not furnished. The jurisdiction under Order XVIII Rule 17 of the Code of Civil Procedure cannot be exercised to fill up lacunae in the evidence and change of counsel or not briefing the counsel cannot be valid grounds for recalling the witnesses. Sri S. Abhay Kumar Sagar, learned counsel for the revision petitioner and Sri Thakur Singh, learned counsel for the first respondent, are heard at length, while none appeared on behalf of the 2nd respondent-1st defendant. Sri S. Abhay Kumar Sagar, learned counsel for the revision petitioner placed reliance on Nagumothu Sriharinath v. Nagumothu Vani[1] cited before the trial Court and Allumalla Kannam Naidu v. Allumalla Simhachalam[2]. During the hearing of the revision petition, the learned counsel for the 1st respondent furnished the details and copies of six documents, which are sought to be confronted to the witnesses on their being recalled. The point for consideration is whether the exercise of jurisdiction by the trial Court under Order-XVIII Rule 17 of the Code of Civil Procedure to recall the witnesses was unreasonable or perverse? In Nagumothu Sriharinath v. Nagumothu Vani (1 supra), the request for recalling the witnesses was negatived by this Court as the ground that the counsel for the party was not properly briefed cannot be a ground for recalling the witnesses. The learned Judge at the same time observed that the Court always permitted recalling of witness for further examination/cross- examination of the witness at the instance of parties subject to the facts and circumstances of the case. The Court refused to interfere with the order by the trial Court exercising its judicial discretion not to recall the witness on the ground of the counsel not being briefed and as pointed out by the trial Court, the present case is not one where the counsel was alleged to be not briefed. But, it is a case where the party claimed to have entrusted relevant documents to the counsel, who neither filed them into the Court nor confronted them to the witnesses during the cross- examination. In Allumalla Kannam Naidu v. Allumalla Simhachalam (2 supra), the request for recalling was found to be unsupported by valid reasons and the learned Judge was again dealing with a case where the trial Court exercised its judicial discretion against recalling the witness as there were no sufficient reasons to recall the witness on the ground that some important and crucial aspects were not put to the witness or on the ground that the party could not produce the relevant papers before his counsel. The learned Judge was referring to the case of Nagumothu Sriharinath v. Nagumothu Vani (1 supra) as well as the other decisions cited before the trial Court in this case and opined that as there was only a bald statement of omission to put some crucial questions without any convincing reasons, the refusal of the trial Court to exercise its jurisdiction cannot be considered illegal. Thus, in both the cases, on facts, the Court found that there were no valid reasons for recalling the witness and in both the cases the trial Court has exercised its juridical discretion in a particular manner with which the High Court did not interfere. In the present case, the trial Court has exercised its jurisdiction to recall the witnesses and Sri Thakur Singh, learned counsel, contended that the witnesses are to be confronted with Exs.A.1 and B.4 to B.8 during further cross-examination, while Sri Abhay Kumar Sagar, learned counsel for the revision petitioner, brought to notice a copy of the evidence of DW.1 to show that some of the documents were already confronted to the witnesses. It is seen from the cross-examination of DW.1 that DW.1 was confronted with Ex.A.1, but was not confronted with Exs.B.4 to B.8. The witness claimed ignorance about the earlier suit filed by the husband of the first respondent herein in O.S.No.30 of 2007 and even denied filing a written statement in the said suit, due to which the claim that the witness has to be confronted with Exs.B.4 to B.8 cannot be considered to be untenable or irrelevant. Similarly, the evidence of the witnesses about Exs.B.7 and B.8 leaves the necessity and scope for cross-examining the witnesses in respect of the said documents, and thus, Exs.B.4 to B.8 were stated to have been admitted in evidence subsequent to the cross- examination of PWs.1, 3 and DW.1. While the 1st respondent has stated before the trial Court on oath about the entrustment of these documents to her counsel much prior to the cross-examination of the witnesses and when these documents were not confronted to the witnesses and not placed before the Court till after cross- examination of PWs.1 and 3 and DW.1 was completed in the first instance, the claim that the lapse of the counsel in not filing the documents entrusted to him before the Court and not confronting the documents to the witnesses should not prejudice the rights of the 1st respondent cannot be considered as unreasonable or illegal or to be beyond the scope of Order-XVIII Rule 17 of the Code of Civil Procedure. Exercise of its judicial discretion by the trial Court in the matter, therefore, does not appear to be one calling for interference with the impugned order in the absence of any perversity or illegality in the order, and hence, the Civil Revision Petition should fail. Accordingly, the Civil Revision Petition is dismissed without costs. But, the further proceedings in the suit itself for determination on its own merits shall be uninfluenced by any observation made in this order. _____________________ G. BHAVANI PRASAD, J Date: 05-02-2010 Ksn [1] 1997 (5) ALT 209 [2] AIR 2003 AP 239