Kanakamedala Venkata Rajendra Prasad Vs Nakkelayya Ramakrishna Siva Prasad

KANAKAMEDALA VENKATA RAJENDRA PRASAD, S/O VENKATA KRISHNA RAO, AGED 60 YEARS, R/O 32-10-22 /9 VENKATESWARA COLONY, SHEELANAGAR, GAJUWAKA MANDAL, VISAKHAPATNAM DISTRICT.

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...PETITIONER

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AND

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NAKKELAYYA RAMAKRISHNA SIVA PRASAD, S/o late Rambabu, aged 46 years, R/o flat No.201-first floor. Plot No. 215 and 215A, NGGOs colony, Kapparada Village, Murali Nagar, Visakhapatnam

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...RESPONDENT

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Petition under Article 227 of the Constitution of India,praying that in the circumstances stated in the grounds filed herein,the High Court may be pleased toAggrieved by the order and decree of the Principal Civil Judge (Senior Division) at Gajuwaka in lA No.494/2023 in O.S No. 13/2022 dt.2304-2024, the above-named petitioner presents this Memorandum of Civil Revision Petition

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IA NO: 1 OF 2024

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to stay all further proceedings in O.S No.13/2022 on the file

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of the Principal Civil Judge (Senior Division) at Gajuwaka in the pendency of this CRP, and pass such

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IA NO: 1 OF 2025

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to grant extension of the Interim Order dated 01.08.2024 in C.R.P.No.1504 of 2024 which was being extended from time to time by this Hon‟ble Court in the interest of justice and to pass

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Counsel for the Petitioner:

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1.K SARVA BHOUMA RAO

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Counsel for the Respondent:

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1.M. SAPTHAGIRI

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The Court made the following:

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ORDER:

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This Civil Revision Petition has been filed by the petitioner/plaintiff challenging the order dated 23.04.2024 passed in I.A.No.494 of 2023 in O.S.No.13 of 2022 on the file of Court of the Principal Senior Civil Judge, Gajuwaka.

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The petitioner/plaintiff has filed the aforesaid suit against the respondent/defendant for recovery of money, i.e. Rs.33,00,000/- which was borrowed by the respondent on 27.09.2020 by executing a promissory note agreeing to repay the same with interest rate of Rs.2/- per month. In the said suit, the respondent filed a written statement under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for short „C.P.C.‟), stating that the petitioner has no such financial capacity to lend such a huge amount. As such, in order to prove that the petitioner gets suitable income through his vehicles and in order to mark few documents on his behalf in support of his contention, the petitioner filed I.A.No.494 of 2023 under Order XVIII Rule 17 read with 151 C.P.C., requesting the Court below to re-call him (P.W.1) for marking of the documents. The Court below, after perusing all the available documents before it, dismissed the application filed by the petitioner herein vide order dated 23.04.2024. Challenging the said order, the petitioner has filed the present revision petition.

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When the revision petition came up for hearing on 01.08.2024, this Court has granted interim stay of all further proceedings in O.No.13 of 2022

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on the file of the Principal Civil Judge (Senior Division) at Gajuwaka, which was extended thereafter from time to time.

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Heard Sri. K. Sarva Bhouma Rao, learned counsel for the petitioner and Sri. Sapthagiri Metta, learned counsel for the respondent.

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As the petitioner has filed I.A.No.494 of 2023 before the Court below under Order XVIII Rule 17 read with 151 C.P.C., it would be appropriate to extract the said provision here:

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“17. Court may recall and examine witness.—The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.”

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Order XVIII Rule 17 of the CPC empowers the court to recall a witness at any stage solely for the purpose of seeking clarification, but it does not grant any right to the parties to recall witnesses for further examination or cross-examination. The said power should be exercised strictly to remove ambiguities or clarify a witness's statement, not to allow a party to fill gaps in its case.

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On a perusal of the order dated 23.04.2024 passed by the Court below, it can be seen that during the course of cross examination, the petitioner was questioned by the respondent as to his capacity of lending the aforesaid amount of Rs.33,00,000/-. In order to prove that the petitioner is capable of lending such a huge amount, the petitioner filed I.A.No.494 of 2023 in the

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aforementioned suit before the Court below to recall himself (P.W.1) in order to mark certain documents i.e. B-Register particulars of goods carriage vehicles, pertaining to the year 2023, bearing registration Nos.AP31TF7779, AP31TA4887, AP39U3636, AP24TB0669; account copy issued by Siri Varshini Chitfund limited to the wife of the petitioner for chit No.SV3XL/19 for the value of Rs.20,00,000/- and the prize money of Rs.14,62,000/- received, dated 17.08.2017 and for chit No.SVBSL/22 for the value of Rs.10,00,000/and the prize money of Rs.7,33,570/- received, dated 30.06.2015; registered sale deed bearing document No.4508/2006 purchased by wife of the petitioner for an amount of Rs.22,74,500/-; registered sale deed of document bearing No.2171/2012 which was sold away by the wife of the petitioner and another for an amount of Rs.14,25,000/-; registered sale deed of document bearing No.3309/2012 which was sold away by the petitioner and his wife for an amount of Rs.8,22,500/-, registered sale deed of document bearing No.4462/2012 which was sold by the petitioner and his wife for an amount of Rs.6,00,000/-; registered sale deed of document No.483/2014 jointly sold away by the petitioner and his wife for an amount of Rs.9,97,500/-; registered sale deed of document No.484/2014 which was sold by the petitioner and his wife for an amount of Rs.6,30,500/-; registered sale deed of document No.485/2014 which was sold by the petitioner and his wife for an amount of Rs.6,24,500/- and registered sale deed of document No.1677/2012 which was sold by the petitioner and his wife for an amount of Rs.6,77,500/-.

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Though the petitioner filed the aforesaid documents before the Court

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below in order to prove his capability of lending the aforesaid amount to the respondent, the Court below, having observed that the said documents pertain to 2006, 2012, 2014 and 2023 but not of the year 2020 i.e., the year in which the petitioner alleged that he lent the said amount to the respondent, has dismissed the application filed by the petitioner vide order dated 23.01.2024. The trial Court disbelieved the said documents filed by the petitioner on the ground that they are not related to the year of transaction i.e. 2020. Merely on the ground that the petitioner has not filed the documents which show the financial capacity of the petitioner pertaining to the year 2020, the financial capacity of the petitioner to lend the amount covered by the pronote cannot be doubted. Even if these documents are admitted and marked as exhibits, the respondent would get an opportunity to contradict the petitioner during the course of cross examination.

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In view of the foregoing discussion, the impugned order dated 23.04.2024 is hereby set-aside and the civil revision petition is accordingly allowed. Further, learned Principal Civil Judge (Senior Division), Gajuwaka is directed to mark the documents presented by the petitioner and on such marking of said documents, an opportunity may be afforded to the respondent herein to further cross examine the petitioner.

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