The High Court in Civil Revision extended the trial court's exercise of discretion in permitting recall of DW-1 for cross-examination on specific grounds of changed circumstances and non-production of documents, rejecting the revision petitioner's res judicata plea.
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THE HON’BLE Ms. JUSTICE G. ROHINI
CIVIL REVISION PETITION Nos.600 and 603 of 2013
DATE: 22.02.2013
Between: Dr. Ramesh Kumar …Petitioner And M.Suresh Kumar
…Respondent
THE HON’BLE Ms. JUSTICE G. ROHINI
CIVIL REVISION PETITION Nos. 600 & 603 of 2013
COMMON ORDER:
The defendant in O.S.No.786 of 2011 on the file of the Court of the II Additional Junior Civil Judge at Visakhapatnam is the petitioner in these two revision petitions. The respondent herein is the plaintiff and the suit is filed for recovery of money. Both the parties adduced evidence and thereafter the judgment was reserved.
At that stage, the defendant/revision petitioner filed an application to reopen the matter so as to advance the arguments on the side of the defendant. The said application was allowed and the matter was reopened for arguments.
While so, the plaintiff/respondent herein filed two applications i.e., I.A.No.640 of 2012 to reopen the evidence and I.A.No.641 of 2012 to recall D.W.1 for the purpose of further cross-examination. By separate orders dated 7.12.2012 the said applications were allowed on payment of costs of Rs.500/-. Aggrieved by the same, these two revision petitions are filed by the defendant.
I have heard the learned counsel for the petitioner and perused the material available on record.
While bringing to the notice of this Court that I.A.No.579 of 2012 filed by the plaintiff to recall D.W.1 for further cross-examination was dismissed earlier on 15.11.2012, it is vehemently contended by the learned counsel for the petitioner that filing a fresh petition for the same relief is hit by the principles of res judicata under Section 11 of C.P.C. and therefore, the Court below ought to have dismissed the applications in limine.
A perusal of the affidavit filed in support of I.A.No.640 of 2012 shows that the plaintiff wanted to cross-examine D.W.1 for a specific purpose of putting questions with regard to certain documents that were not produced by the defendants. It is true that the plaintiff had earlier filed I.A.No.579 of 2012 to recall D.W.1. The Court below was also aware of the said fact. However the Court below opined that in view of the change of circumstances it would be appropriate to give an opportunity to the plaintiff to cross-examine D.W.1 with regard to nonproduction of crucial documents. Accordingly, the application was allowed on payment of costs of Rs.500/- to the District Legal Services Authority.
As noticed above, D.W.1 was sought to be recalled for further cross-examination for a specific purpose which was mentioned by the plaintiff in the application itself. Having found that cross-examination of D.W.1 on that particular aspect is necessary, the Court below thought it fit to recall D.W.1. Such a discretion exercised by the Court on application of mind to the facts and circumstances of the case cannot be held to be perverse or illegal warranting interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India. Therefore, I do not find any justifiable reason to interfere with the orders under revision.
However, it is made clear that cross-examination of D.W.1 shall be confined only to the purpose mentioned in the affidavit filed support of I.A.No.641 of 2012.
Subject to the above observation, the Civil Revision Petitions are dismissed. No costs.
__________________ G. Rohini,J
Date:22.02.2013 Note: Issue C.C. in 3 days. B/o KLP
2 issues framed by the court
Whether the trial court committed an error in law or fact by allowing the recall of a witness for further cross-examination based on changed circumstances despite an earlier disposition on a similar p
Whether the discretion exercised by the trial court in recall and cross-examination is perverse or illegal warranting interference by this Court.
Dr. Ramesh Kumar
M. Suresh Kumar
G. ROHINI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
