THOTA SURYANARAYANA Vs. KANUMURI SITARAMA BAPIRAJU

JUDGEMENT

(1.) the learned Counsel representing the revision petitioners-respondents 11 and 12-defendants 13 and 14 and Sri T.Durga Prasad Rao, the learned Counsel representing the first respondent-plaintiff. The order dated 25/4/2002 made in I.A.No.461 of 2002 in O.S.No.42 of 1997 on the file of the Principal Junior Civil Judge, Tadepalligudem is impugned in the present Civil Revision Petition filed under Article 227 of the Constitution of India by the revision petitioners, Respondents 11 and 12 in the application, defendants 13 and 14 in the suit.

(2.) An application under Order XVIII, Rule 1 of the Code of Civil Procedure, hereinafter referred to in short as 'the Code' and Section 138 of the Indian Evidence Act, hereinafter referred to in short as 'the Act', was filed by the applicants with a prayer to expunge or delete the cross-examination of PWs.1 to 3 by defendants 13 and 14 in the suit. The said application was allowed and the cross-examination of PWs. 1 to 3 by defendants 13 and 14 had been expunged mainly on the ground that these parties cannot be treated as adverse parties and hence, they have no right to cross-examine these witnesses. Assailing the said order, the present revision had been filed.

(3.) Sri S. Subba Reddy, the learned Counsel representing the revision petitioners had submitted that the suit O.S.No.42 of 1997 on the file of the Principal Junior Civil Judge, Tadepalligudem was filed for mandatory injunction directing the defendants to remove the wall along 'X-X1' in a length of 1 yard and a width of 9 inches above the ground and 14 inches below the ground and also to remove the projected sunshade into the plaintiffs site and other reliefs. The learned Counsel also contended that it is clear from the written statement filed by the 14th defendant as adopted by the 13th defendant that these parties never supported the case of the plaintiff. The learned Counsel also would maintain that the contest by a party can be only to a particular extent and it need not be in toto always. The learned Counsel also had disinguished the decisions relied upon by the learned Judge while allowing the application. The Counsel had also contended that the learned Advocate representing these parties never objected when these witnesses were cross-examined, but as an afterthought, this application was filed. The learned Counsel further submitted that a clear stand was taken by the revision petitioners-contesting defendants that they are co-owners along with the other defendants according to the deed of the year 1887. In view of the same, it cannot be said that the revision petitioners are sailing with the plaintiff. The learned Counsel also would maintain that admission made by the parties should be clear, unequivocal and categorical and hence, on a reading of the written statement it cannot be said that the contents of the plaint had been admitted and reliance was placed in Chikkam Koteswara Rao v. Chikkam Subbarao and others, AIR 1971 SC 1542. .