(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 topetitioner begs to present this Memorandum of Civil Revision Petition against the order in IA No.404/2022 Os.No.40 of 2013 on 12-12-2022 on the file of the Court of XV Additional District and Sessions Judge,Nuzvid

IA NO: 1 OF 2022

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 dispense with filing of the certified copy of the order in IA No.404 of 2022 in OS No.40 of 2013 on the file of the Court of XV Additional District and Sessions Judge, Nuzvid pending disposal of the above CRP and pass such

IA NO: 2 OF 2022

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 grant stay all further proceedings in OS No.40 of 2013 on the file of the Court of XV Additional District and Sessions Judge, Nuzvid pending disposal of the above CRP and pass such

IA NO: 1 OF 2025

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 extend the Interim orders granted earlier dt. 19.12.2022 which has been extended from time to time till dt.29.10.2024 as otherwise the Petitioner will be put to great hardship and passs)

1. The petitioner is aggrieved by the order dated 12.12.2022 passed in I.A.No.404 of 2022 in O.S.No.40 of 2013 by the XV Additional District and Sessions Judge, Krishna District at Nuzvid. The said interlocutory application was filed to recall PW1 for cross-examination, and the learned Judge allowed it.

2. The learned counsel appearing for the petitioner submits that a Petition under Order XVIII, Rule 17, CPC, could not be filed to fill the lacuna in the cross-examination. It is submitted that the plaintiff was cross- examined by the other defendants in the suit. However, the 1st defendant awaited the cross-examination of the plaintiff as PW.1 by the other defendants and thereafter filed I.A. No. 404 of 2022 seeking to recall PW. 1 for cross-examination. It is submitted that the motive of filing the application at a belated stage is only to fill up the lacuna in the evidence, which is not permissible under the law.

3. The learned counsel for the petitioner further submits that the learned Judge has erred in allowing the I.A. solely on the ground that a fair opportunity ought to be granted to the petitioner to cross-examine the PW1. It is also submitted that the learned Judge observed that there was an abnormal delay in filing the petition; however, despite such observation, the I.A. was allowed without assigning any reasons.

4. The learned counsel for the petitioner further places reliance on Vadiraj Nagappa Vernekar (dead) Through L.Rs. Sharadchandra Prabhakar Gogate((2009) 4 SCC 410), the Hon’ble Supreme Court held that, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. The Hon’ble Supreme Court in the matter of Bagai Construction Through Its Proprietor Lalit Bagai Vs. Gupta Building Material Store((2013) 14 SCC 1), held that after amendment to the CPC recording of evidence is to be continuous followed by arguments and final decision thereafter within a reasonable time. It was also observed that the Hon’ble Supreme Court has time and again reminded the Courts to constantly endeavour to follow such a time schedule. In the event, time schedule is not followed the very purpose of amending the provisions of Civil Procedure Code would be defeated. It was also observed that applications for adjournments, reopening and recalling witnesses could be as far as possible and only in compelling and acceptable reasons, those applications are to be considered. It was also held that by filing applications for recalling the witnesses the case of the party cannot be include resulting in filling up the lacuna.

5. The learned counsel appearing for the respondent Nos. 4, 6 to 9 submits that the respondent Nos. 4, 6 to 8 have adopted the counter filed by the petitioner in I.A.No. 404 of 2022. Though the notice has been served on the contesting respondents, there is no representation on their behalf when the matter is taken up for hearing.

6. Heard the learned counsel for the petitioner and the learned counsel appearing for respondent Nos. 4 and 6 to 9. Perused the material on record.

7. The short point for consideration is ;

                  Whether this Court can consider the case of the petitioner and set aside the order passed by the learned XV Additional District and Sessions Judge, Krishna District at Nuzvid in IA No. 404 of 2022 in OS No. 40 of 2013 ?

8. The suit in O.S.No.40 of 2013 is filed for partition and is pending trial.

                  The petitioner and the 1st defendant are children of the 2nd defendant. The case of the plaintiff before the trial Court is that the defendant Nos.1 and 2 have indulged in clandestine sale transaction of 1,500 square feet of open terrace area on the first floor in Item No. 2 of the suit schedule property, having sold the same in favour of defendant Nos.3 to 5, and permitted them to construct a house in the said open terrace area.

9. Aggrieved by the said unilateral action on the part of defendant Nos. 1 and 2, the suit for partition was filed by arraying the subsequent buyers as party defendants. The affidavit filed in support of the prayer for recalling PW1, would disclose that the petitioner therein could not cross examine the plaintiff as the learned counsel for the petitioner therein was absent and the Court has recorded nil cross examination on behalf of the defendant No.1. It is also stated in the affidavit that PW1 was cross examined by counsel for defendant Nos.3, 4, 7 and 9. He has also stated in the affidavit that the petitioner therein has changed counsel in the trial Court and has filed an application under Order XVIII, Rule 17, CPC, seeking to recall PW1 for cross-examination. It is stated that the petitioner therein did not receive the required support from his counsel, as such, engaged a new counsel.

10. The learned Judge has considered the issue and held that the petitioner therein be given an opportunity to cross-examine the plaintiff. As seen from the record, it is evident that the contesting defendants 1 and 2 have not cross-examined the plaintiff. The defendants who have purchased the property from the defendant Nos.1 and 2 have filed an adoption memo adopting the counter filed by the plaintiff in IA.No.404 of 2022. The defendants 3 to 5 are not necessary parties for answering the issue of the plaintiff's entitlement to the plaintiff for partition of the suit schedule property. The defendant Nos.3 to 5, being the subsequent purchasers, have a limited role in answering the claim of the plaintiff seeking relief against defendant Nos.1 and 2 on the merits.

11. It is settled law that Order 18 Rule 17 CPC cannot be pressed into service for filling up the lacunas in cross-examination. Admittedly, the defendant Nos. 1 and 2 have not cross-examined the plaintiff. In such a scenario, the suit for partition cannot be effectively decided on the merits. In these circumstances, the contention of the learned counsel for the petitioner that the 1st respondent intends to recall PW.1 for cross- examination with the sole aim of filling up the lacuna in cross- examination.

12. The judgments relied upon by the learned counsel for the petitioner are not applicable to the facts of this case and, as such, cannot be considered for the disposal of the present Civil Revision Petition with the facts on hand.

13. In light of these considerations, this Court feels that cross-examination by the competent and appropriate party is essential to the adjudication of the lis between the parties before the trial Court. Considering the submission that the suit was filed in the year 2013, the learned XV Additional District Judge and Sessions Judge, Krishna District at Nuzvid, shall endeavour to dispose off the suit in OS.No.40 of 2013 on merits within a period of eight months from the date of receipt of the order.

14. Accordingly, the order dated 12.12.2022 passed by the learned XV Additional District Judge and Sessions Judge, Krishna District at Nuzvid in I.A.No.404 of 2022 in O.S.No.40 of 2013 is upheld, and the present Civil Revision Petition is dismissed. There shall be no order as to costs.

As a sequel, miscellaneous petitions pending, if any, shall stand closed.