MOHD HAMED SHAREEF Vs. MOHD KHALED SHARIEF

JUDGEMENT

(1.) CRP No.3431 of 2012 is directed against the order dated 14.6.2012 in IA No. 188 of 2012 in OS No.2159 of 2009, on the file of the Ill-Junior Civil Judge, Hyderabad, wherein the said application filed by the petitioners herein, defendants 2 and 3, under Order XVIII Rule 17 CPC for recall of PW1 for further cross-examination, was dismissed.

(2.) CRP No.3432 of 2012 is directed against the order dated 14.6.2012 in 1A No.289 of 2012 in the same suit, wherein the said application filed by the petitioners herein under Section 151 CPC to reopen the evidence, was dismissed.

(3.) THE 1st respondents/plaintiff filed the suit for eviction of defendants from the schedule property and for recovery of arrears of rents and mesne profits. The defendants filed written statement contesting the suit. After settlement of issues, the trial of the suit is commenced. The plaintiff was examined as PW1 and thereafter the Counsel through whom the legal notice Ex.A16 was got marked was examined as PW2. Though Exs.A16 to A19 are filed by PW1, they were not marked through his evidence but were got marked through PW2, the legal Counsel through whom the notice was got issued. PW2 was cross-examined regarding Exs.A16 to A19. The petitioners filed the present application seeking reopening of evidence and recall of PW1 for further cross-examination on the ground that they had no opportunity earlier to confront PW1 with Exs.A16 to A19 in the earlier cross- examination, as the said documents were not marked by them. The trial Court dismissed the application observing that there is no necessity to recall PW1 as the documents were marked through the evidence of PW2 and he was cross- examined at length. It is to be noticed that PW2 was a legal Counsel through whom the notice was got issued by deceased father of the 1st petitioner and respondents. As the said documents were not marked in the evidence of PW1, the defendants had no occasion to cross-examine PW1 regarding the same. The observation of the trial Court that because the documents were marked through PW2 further cross-examination of PW1 regarding the said documents is unnecessary, is rather misconceived. As the petitioners had no opportunity to cross- examine PW1 regarding Exs.A16 to A19, as they were not marked at that time, they are justified in seeking an opportunity to recall PW1 for further cross-examination pertaining to Exs.A16 to A19. The impugned orders, dismissing the applications, are therefore, held unsustainable and the same are accordingly set aside. However, the petitioners shall cross-examine PW1 on the date fixed by the trial Court pertaining only to documents Exs.A16 to A19 and in the event of their failure to avail the said opportunity, the trial Court shall be at liberty to proceed further with the matter without giving any further opportunity.