(Prayer: 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 to Petitioners requests to present this Memorandum of Civil Revision Petition, being aggrieved by the order dated 22.01.2024 passed in I.A.No.279 OF 2023 in O.S.No.213 OF 2014, on the file of the Court of the Honble VII Additional District Judge, Gudur, filed seeking order for recall of Pw-2 for further examination.

IA NO: 1 OF 2024

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.213 of 2014 on the file of the VII Additional District Judge, Gudur in the interest of the justice and pass such)

1. This Civil Revision Petition is filed challenging the legality and correctness of the order dated 22.01.2024 passed in I.A.No.279 of 2023 in O.S.No.213 of 2014 by the learned VII Additional District Judge, Gudur.

2. The Revision Petitioners are the petitioners/plaintiffs, while respondents are respondents/defendants in I.A.No.279 of 2023 in O.S.No.213 of 2014 on the file of the Court of the learned VII Additional District Judge, Gudur

3. The facts that led to filing of this Civil Revision Petition, in brief, are that:

                  (i) In the suit filed by the petitioners for declaration of their title and recovery of possession of the plaint schedule property vide O.S.No.213 of 2014, they filed the petition vide I.A.No.279 of 2023 to recall P.W.2-Tahsildar Manubolu, for further cross-examination contending that the petitioners have to cross-examine the Tahsildar relating to the property in dispute seeking clarification regarding old & new survey numbers, sub-divisions in the plaint schedule property, Field Measurement Book, Pattadar and title deed passbooks issued to the respondents and their status and several other aspects, which would throw light on the facts of the case and help in adjudication of the matter in proper perspective.

                  (ii) The respondents resisted the claim made by the petitioners by filing counter contending that this petition is filed by the petitioners contrary to their undertaking given by them before the High Court that Mandal Surveyor would be the last witness to be examined by them in the suit. The petitioners earlier filed I.A.No.172 of 2021 for the same relief and that petition was dismissed on 17.10.2022 on merits and suppressing the same, the petitioners again filed this petition and therefore, the petition is not maintainable. The suit is of the year 2009 and the petitioners filed as many as 25 petitions and successfully dragged on the proceedings this far. The petition is nothing but a truce to protract the suit proceedings further to cause mental agony to the respondents.

                  (iii) Upon hearing the learned counsel for the parties, the learned trial Judge dismissed the petition imposing costs on the grounds that the petition is hit by Excaptio Res-judicata; filed in violation of the undertaking given by the petitioners before the High Court that Mandal Surveyor would be the last witness to be examined by them and that the petitioners earlier filed voluminous petitions and had successfully dragged on the matter for nearly 16 years and wasted precious time of the court.

                  (iv) The said dismissal order was called in question in this Civil Revision Petition.

4. Heard Sri Srinivas Basava, learned counsel for Civil Revision Petitioners, and Ms.Y.L.Siva Kalpana Reddy, learned counsel for respondents.

5. Sri Srinivas Basava, learned counsel for the petitioners, while reiterating the contents of the affidavit filed in support of the petition before the trial Court and grounds of Civil Revision Petition would contend that on the date when P.W.2 was called earlier the petitioners had no occasion to cross-verify the documents marked as Exs.X1 to X3 and thus recalling of P.W.2 is very much essential to ascertain the truth regarding missing pages of Ex.X2-report and other aspects so as to place before the trial Court the true state of affairs for facilitating proper adjudication of the case. He would further contend that recalling P.W.2 would no way contradict the undertaking given before the High Court that no further witnesses would be examined. Accordingly, prayed to allow the Civil Revision Petition.

6. On the other hand, Ms.Y.L.Siva Kalpana Reddy, learned counsel for respondents, while reiterating the contents of the counter filed before the trial Court would contend that the petition is barred by the principles of res judicata, in view of dismissal of earlier petition filed for similar relief. She would further contend that the petition is nothing but a ruse to further protract the litigation to cause mental agony to the respondents. She would further contend that the petitioners having not satisfied with successfully dragging the litigation for nearly 16 years by filing as many as 25 frivolous petitions, filed this petition so as to see that the suit may be dragged on further. She would further contend that the learned trial Judge upon meticulous analysis of the facts and attendant circumstances including the nature of the petitioners in filing petitions one after other, rightly dismissed the petition and the said well-considered order does not require any interference of this Court. Accordingly, prayed to dismiss the Civil Revision Petition.

7. Perused the material available on record and considered the submissions made by learned counsel for the parties.

8. The order impugned clearly shows that the petitioners filed numerous petitions and caused extraordinary delay in suit proceedings and that as many as sixteen (16) years have elapsed since the date of filing of the suit.

9. According to the petitioners, they have to extract information seeking clarification regarding old & new survey numbers and sub divisions. The evidentiary value of the evidence to be extracted from P.W.2 would be gone at the time of appreciating the evidence at the ultimate disposal of the suit.

10. The suit is filed for declaration of title and recovery of possession. In a suit for declaration, the plaintiff bears the absolute burden of proof to establish their legal right, title, or character. They must succeed on the strength of their own title and evidence, not on the weaknesses or failures of the defendant’s case. Trial is a voyage of discovery in which truth is the quest.

11. The petitioners being the plaintiffs in a suit filed for declaration, bear the absolute burden of proof to establish their right and title over the property, this Court is of the considered opinion that affording an opportunity to further examine/cross-examine P.W.2 would subserve the ends of justice, however by imposing costs.

12. Since the petitioners are not examining any new witness, but seeks recall of P.W.2 for the purpose of further examination/cross-examination, the same does not amount to violation of the undertaking given by the petitioners before the High Court in earlier C.R.Ps.

13. In the above view of the matter, this Civil Revision Petition is allowed, setting aside the impugned order. Consequently, the petition vide I.A.No.279 of 2023 in O.S.No.213 of 2014 stands allowed, subject to payment of costs of Rs.10,000/- (Rupees ten thousand only) by the petitioners to the contesting respondents. The petitioners shall examine/cross-examine P.W.2 on the date fixed by the learned trial Judge, without fail and shall not seek any adjournment on any ground. There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.