In this revision, the High Court set aside the trial court's order recalling an earlier permission to issue witness summons. It directed fresh issuance of summons to ensure fair trial opportunity.
Impugned order recalling summons permission set aside. Trial court directed to issue fresh summons to witnesses.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD
MONDAY, THE TWENTY FIFTH DAY OF JUNE, TWO THOUSAND AND TWELVE
PRESENT::
HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2581 OF 2012
Between:
Syed Afsar Ali Khan
…Petitioner
A n d
Smt.Usha bai
…Respondent
HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2581 OF 2012
ORDER:
This civil revision petition is directed against the order dated 23.04.2012 in I.A.No.364 of 2012 in O.S.No.749 of 2008, on the file of the I-Junior Civil Judge, City Civil Court, Secunderabad, wherein the said application filed by the respondent herein, the plaintiff, under Section 151 CPC for recall of the order passed earlier summoning the witnesses, was allowed.
2. Heard the learned counsel for the petitioner. None appeared for the respondent. Perused the record.
3. The respondent/plaintiff filed the suit for eviction of the petitioner/defendant from the schedule premises. The petitioner filed a written statement contesting the suit. It is stated that during the course of trial, the petitioner/defendant filed an application seeking issuance of summons for examination of three witnesses viz., Chote Miya, Syed Akil and B.Lakshman on his side and the said application was allowed on 23.12.2011 and summons were issued for appearance of the said witnesses. It is stated that the summons are returned unserved. Thereafter, the respondent/plaintiff filed I.A.No.364 of 2012 seeking recall of the said order on the ground that witnesses are not available. By the impugned order, the trial Court allowed the said application observing that there is no need for issuance of fresh summons to witnesses, as the summons were returned unserved.
4. The learned counsel for the petitioner would submit that just because the summons issued to the witnesses on occasion returned unserved, because of the absence of the witnesses, the trial Court ought not to have recalled the order passed earlier permitting issuance of summons to those witnesses and the impugned order has caused prejudice to the petitioner/defendant as the same virtually prevented the petitioner from adducing further evidence, though issuance of summons was granted earlier. The interest of fair trial would require that sufficient opportunity
is given to the petitioner to produce the witnesses, especially when the Court has earlier permitted issuance of summons to those witnesses. Simply because the summons were returned unserved on one occasion, the trial Court ought not to have recalled the earlier order and thereby thwarted further evidence on the part of the petitioner at the instance of the respondent/plaintiff. In all fairness, the trial Court ought to have given at least one more opportunity to the petitioner/defendant to serve the summons to produce those witnesses.
5. In the circumstances, the impugned order is held unsustainable and the same is accordingly set aside. Consequently, in I.A.No.364 of 2012 stands dismissed. The trial Court is directed to issue fresh summons to the three witnesses named above by way of one more opportunity to the petitioner/defendant to adduce further evidence by fixing a date for their appearance. In the event of non-service of summons on the witnesses or failure of the petitioner/defendant to produce the witnesses or in the event of the witnesses not appearing before the Court, having received the summons, it is open to the trial Court to proceed further in accordance with law.
6. The civil revision petition is disposed of accordingly. Miscellaneous petitions, if any, filed shall stand closed. There shall be no order as to costs.
G.V.SEETHAPATHY, J 25th June, 2012 Note: Furnish CC in 3 days. Lrkm
1 issue framed by the court
Whether the trial Court had the right to recall an earlier order permitting issuance of summons to witnesses solely because summons were returned unserved.
Syed Afsar Ali Khan
Smt.Usha bai
G.V.Seethapathy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
