Dismissed

Mohammed Omer v. Mohammed Showb

Telangana HC20 Dec 2024CRP/4011/2024

Case brief

AI extract

What is this about?

A Civil Revision petition challenging the Trial Court's rejection of an application to recall a witness for cross-examination by new counsel. The High Court dismissed the petition, holding that mere change of counsel is not a valid ground for recalling evidence under Article 227.

What did the court decide?

The Civil Revision Petition is dismissed. No order as to costs. Miscellaneous applications pending shall stand closed.

Mohammed Omer Vs Mohammed Showb — Civil Procedure and Limitation | Telangana HC (2024)

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t³⁴⁰¹ I

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IN THE HIGH COURT FOR' OF TE LANG ANA O"

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"O'J*'OBHE

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FRIDAY, THE TWENTIETH DAY OF DECEMBER TWo rHousAND AND TWENTy FouR--"

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PRESENT

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THE HONOURABLE SRI JUSTICE SUJOY PAUL

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CIVIL REVISION PETITION NO:4O11 oF 2024

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Between:

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Mohammed Omer, S/o Late ."1 l#;##fl::^",,H:fi #HsjJ:NlXi#:li?fl,:.,?.il31"T!*tfl

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...Petitioner / Defendant No.2

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AND

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1 Mohammed Showb, S/o Lal ,ee,r!r r;; o; H#J'i'ryi!:,!x l1:sffi: j3?,t?:3:l;"an" of 1st Floor Manch Mir Alam, Hyderabad.

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2 Mohammed Osman, S/o Lal ?3,.f t##ip#^{+hhfl mH:^yty#:J3?flS,.,#?1'Jl?i!"*tfl ??

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3 i;.l;ln:tryi:iil L5rte Arhaj Mourvi Mohammed Jahansrr Saheb ""i:

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p6rtron of rst-rl"Ji"rd"i, il,y, ,{EH;,5i:5j[:.:'"-3s0r to 3s? i;;r.;^

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...Respondent/ Defendant No.1 & 3

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Petition under Article 227 ot the Constitution of lndia, praying that in the circumslances stated in the grounds filed herein, the High Courl may be pleased to set aside the Orders dated OSti2t2O24 in l.A. No. 583 of 2'24in O.S. No. 371 of 2022 /passed by the xv,r Addr. senior civir Judge. ccc, Hyderabad, in the interest of justice.

IA oF 20

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 to stay all further^proceedings in o.S. No. 37112022, till the disposal of the present CRP,in the interest of^justice.

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Counsel for the Petitioner(s): Sri Sharad Sanghi

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Gounsel for the Respondents:

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The Court made the following Order:-

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THE HONOURABLE SRI JUSTICE SUJOY PAUL

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C L REVISION PETITION No.4O11 of 2o24

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ORDER:

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This petition filed under Article 227 of the Constitution takes exception to the order dated 05. 12.2024 in I.A.No.583 of 2024 in O.S.No.37 1 of 2022 on the {ile of XVIII Additional Senior Civil Judge, City Civil Court, Hyderabad, whereby the application filed to recall the evidence of P.W. 1 for further cross-examination was rejected by way of a common order.

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Sri Sharad Sanghi, learned counsel for the petitioner advanced singular contention. He submits that when P.W. I was examined, there was no proper cross-examination by the then counsel. Now, a new counsel has entered appearance and therefore, in the interest of justice, the impug:ned interlocutory applications should have been allowed by the trial Court to permit the new counsel to cross-examine the said witness. Reliance is placed on the judgment of the Supreme Court in the case of Vadiraj Naggappa Vernekar v. Sharad Chand Prabhakar Gogatel, w,here in it was held that while exercising power under

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.'\tR l(x)q scc I 60-l

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)

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Order XVIII Rule 7 of CPC, the^{Court in its discretion may recall a} witness for examination-in-chief.

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No other point is^pressed by the^{learned counselfor the} petitioner.

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The tria-l Court by way of^{impugned order rejected the prayer} on the ground that there is^{no justifiablereason to recall the} evidence of P.W. 1. The^{pointinvolved is no more res integra. T}re} Madhya Pradesh High Court in^{the case of Ravi Karosia vs. The}

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State of Madhya Pradeshz,^{held as under:}

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"Irarned Court below^{has considered the judgmentof this} Court in Hari Singh^(supral and^{based its judgment on the} judgment of the Supreme Court in Yakub Ismail Bhai Patel (supraf. l,earned counsel lor the applicant^has not^brought those^judgments to shol,"'^{that the Courtbelowhas committed} an errorin relying on thc^{said judgments. He has not cited} any^judgment. It is trite law that^{when areasonable} opportuaity of cross-examiaation^{has been grantedand} witness is cross-examined by the^{counselfor accused,} merely because a Senior^{Lawyer warts to cross-examine} the same witness or certain^{questionswere lelit out,} perrnission cantrot be granted. The Supreme Court^{in para'} 15 of its^judgment in the case of^{AG v. Shiv Kumar Yadav} and Anr 2015 AIR SCU, 5302 held^{as under:-}

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"15..........WhiIe advanccment of^{justicc remainsthe} prime object of lau-, it cannDt be^{understoodthat} recall can be allou,ccl for the^{asking or reasons} related to mcre convcnience. It^{has 1611aally to be} presumed that the counsel conducting^{a case is} competent particularly when a counsel^is \ appointed by choice of a litigant.^{Taken toits}

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'cr.R.No.5615^{0f20lq.dalcd I i lll0l:}

logical ead, the principle that a retrial must follos on evety change of a counsel, can have s€rious consequcnces on conduct of trials and the criminal^justice system"

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(Emphasis supplied)

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The Madhya Pradesh High Court in the case of Soneram

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Rathore vs. State of M.P.3 held as under :

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" 10. In the present case also after a lapse of sk months, when the case was proceeded for examination of accused to hll up the lacuna, the application has been hled under Section 31I of Criminal Procedure Code. No application which will tantamount to the hlling in the lacunae of the case could be permitted. Therefore, the evidence being sought to be introduced by the defense after a lapse of six months to fill up lacuna is not permissible. Otherwise also the petitioner accused can enter into its defense and substantiate the same by evidence relating to release from the custody on 6.L2.2O12 by Iiling proper documents. Therefore, no prejudice will be caused to the petitioner accused.

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In thc case of Popatlal Jethabhai Shah (supra), it is held that, whcre application for recalling of the orosecution witness was filed on the sround that the new counsel had been engaqed, as the earlier counsel could not elicit some material contradictions. thc application not beinq bona flde was disallowed".

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(Emphasis supplied)

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In view of this legal position, merely because a new counsel has been engaged, the witness cannot be recalled. The trial Court has taken a plausible view. The scope of interference under Article 227 of the Constitution is limited. If the impugned order is passed by a Court having no jurisdiction, order suffers from any patent

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r 20 l5(2) u.p.t_..t. (cri.)t,g

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l I I I I I

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illegality or palpable procedural impropriety, interference carr be made. Another view is possible, is not a ground for interference. This Court cannot act as bull in the china shop to interfere on mere asking (see Shalini Shyam Shetty vs. Rajendra Shaakar Patil4). In the instant case, there is no ingredient on which interference cart be made.

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7 . In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.

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Sd/- N. SRIHARI ASSISTANT REGISTRAR //TRUE COPY// \L-

U.!r,o* oFFrcER

L-

To,

'1 . The XVlll Additional Senior Civil Judge, City Civil Court, Hyderabad

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