Disposed

S. Eswarachari v. N. Venugopal

Telangana HC23 Dec 2011CRP/3074/2011

Case brief

AI extract

What is this about?

Single judge rejected fresh chief examination of a recalled witness to prevent filling lacunae, permitting an additional affidavit limited to plaint amendments instead. The C.R.P. was disposed of with directions for expeditious completion.

What did the court decide?

Lower court permitted additional affidavit in lieu of chief examination for amended plaint facts only; petitioners to cross-examine on that extent. No costs awarded.

S. Eswarachari Vs N. Venugopal — Partition | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE N.V. RAMANA

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C.R.P. No. 3074 of 2011

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Oral order: (Per N.V. Ramana, J.)

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This C.R.P. is directed against the order dated 03.06.2011 passed by the Additional Senior Civil Judge, Chittoor, allowing the application in I.A. No. 41 of 2011 in O.S. No. 142 of 2002, filed by the respondents praying to recall P.W.1 to give evidence about the suit land by way of further chief-examination before cross-examination, subject to payment of costs and filing evidence within the time specified therein.

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The learned counsel for the petitioners submitted that if P.W.1 is recalled and allowed to give chief-examination before crossexamination, there is every possibility of his filling up the lacunae and admissions in his earlier cross-examination, and as such, the Court below committed an error in allowing the present application filed by the respondents for the said purpose. Hence, he prayed that the order under revision be set aside and the C.R.P. be allowed

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On the other hand, the learned counsel for the respondents submitted that since the application filed by the respondents for amending the plaint was allowed, further chief-examination of P.W.1 is necessary because in the earlier chief-examination, the facts touching the amended plaint were not covered, and therefore, the respondents filed by the present application praying to recall P.W.1 for further chiefexamination before cross-examination, and no fault can be found with the order under revision passed by the Court below allowing the same, and prayed that the C.R.P. be dismissed.

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Heard the learned counsel for the petitioners and the learned counsel for the respondents.

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The respondents, admittedly, filed the suit for injunction in the year 2002. Thereafter, they filed application in I.A. No. 823 of 2004 for amendment of the plaint, which was allowed on 31.02.2005. Thereafter, they filed application in I.A. No. 688 of 2008 praying to recall P.W.1. The said application by order dated 06.11.2008 was allowed. Thereafter, the respondents filed the present application again praying to recall P.W.1 for his further chief-examination before cross-examination, with regard to the suit land.

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It is unfortunate to note that the learned Judge, purportedly after

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hearing the counsel and upon perusing the record, without appreciating the legal position and the rules governing the recording of evidence, much less without assigning any reasons, has allowed the present application, which cannot be sustained, because if P.W.1, who is recalled, is allowed to file chief-examination afresh, who has already been cross-examined, there is every possibility of his filling up the lacunae in his evidence, which is impermissible.

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However, regard to the facts and circumstances of the case, I deem it appropriate to dispose of the C.R.P. with the following directions:

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The Court below shall permit the respondents to file additional affidavit in lieu of chief-examination of P.W.1, who is recalled, to the limited extent covering the amendment made in the plaint, and thereafter, the petitioners shall cross-examine him only with respect to the said chief-examination. This exercise shall be completed expeditiously without any further delay.

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Accordingly, the C.R.P. is disposed of. No costs.

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________________ N.V. RAMANA, J.

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Dated: 23^rd December, 2011 KSR

S. Eswarachari v. N. Venugopal

Case brief

What is this about?

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S. Eswarachari v. N. Venugopal

Case brief

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